Discovery Process: Investigation and the Law

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Table of Contents

E-Discovery
Difficulties in E-Discovery
Management’s Duty
Evidence Spoliation and How It Is Prevented
Forensic Science
Three Steps in the Initiation of a Forensic Investigation
ESI in a Digital Investigation
References

Discovery process involves requesting data from the other party after initial information (claims, documents and so on) has been provided to the court (Eastton & Taylor, 2011). One of the central goals of this process is the chance to respond to arguments and claims provided by the other party. Notably, the discovery process is instrumental in achieving fairness in the court.

E-Discovery

The development of technology transformed the discovery process, and e-discovery came into play. E-discovery involves the use of data processed with the help of computer systems. The electronically stored information (ESI) facilitates the fair trial (Whitman & Mattord, 2011). In 2006, the Federal Rules of Civil Procedure introduced certain guidelines, and the e-discovery process became more transparent and clear. One of the major changes that have been introduced recently is the extension of the types of data that can be used. Apart from data found on computers and laptops, information found on mobile devices, tablets and so on can also be used.

Difficulties in E-Discovery

One of the most common difficulties associated with e-discovery is storage of data (LeRoy Miller, 2012). Companies are obliged to store data and provide all the necessary information to the court. However, the bulk of data is often overwhelming, and companies may have difficulties with finding the ways to store excessive data as it requires certain hardware and software that can be rather costly. Collecting and provision of some data can also be a complex task.

Management’s Duty

The company’s management has the duty to preserve data that can be potentially used in the court (Schuler, 2011). The manager has to make sure that all the information that is relevant is stored and can be provided timely. One of the major difficulties is to decide which data can be regarded as relevant as potentially any kind of information can be used as evidence in the court.

Evidence Spoliation and How It Is Prevented

Evidence spoliation can be referred to as complete destruction or considerable alteration of information (Matthews, 2016). The inability to provide the necessary information is also regarded as evidence spoliation. Sanctions are often imposed in case of evidence spoliation. To avoid any litigation, companies can use the corresponding software and hardware that has the necessary capacity to store a significant bulk of information. The company can also hire consultants who can help identify relevant data.

Forensic Science

Forensic science is the scope of tactics and tools to collect scientific data that are provided to the court (Whitman & Mattord, 2011). It can also be defined as the use of technology to address legal issues. Clearly, the focus is on relevant information.

Three Steps in the Initiation of a Forensic Investigation

The first step in the initiation of a forensic investigation is securing the crime scene (Eastton & Taylor, 2011). It is essential to preserve the crime scene as it enables investigators to collect the most relevant data without being distracted by data that appeared after the incident. The second step involves the removal of people involved.

All the people engaged in the incident should not have any access to the information (especially the crime scene) as they can be potentially involved and can distort the data to conceal evidence. The third step is documenting each activity. This can help estimate the effectiveness of each step. Review of the process can help identify some facts that were missed earlier.

ESI in a Digital Investigation

ESI can be collected from email, mobile devices, servers, digital cameras and recorders and so on. At that, such data as notes, print materials and so on can and should be used in a digital investigation.

References

Eastton, C., & Taylor, J. (2011). Computer crime, investigation, and the law. Boston, MA: Cengage Learning.

Leroy Miller, R. (2012). Cengage advantage books: Fundamentals of business law: excerpted cases. Mason, OH: Cengage Learning.

Matthews, D. (2016). Electronically stored information: The complete guide to management, understanding, acquisition, storage, search, and retrieval. Boca Raton, FL: CRC Press.

Schuler, K. (2011). E-discovery: Creating and managing an enterprisewide program: A technical guide to digital investigation and litigation support. Burlington, MA: Syngress.

Whitman, M. E., & Mattord, H. (2011). Reading & cases in information security: Law & ethics. Boston, MA: Cengage Learning.

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