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Discovery Of Electronic Data
Electronic discovery is any process in which electronic data or other non-paper forms are sought, with the purpose of using the data as evidence in a civil or criminal legal case. Electronic data can be electrical, mechanical, magnetic, wireless, optical, etc. Information may be stored on a hard drive, compact disc, digital video disc (DVD), USB flash drive or any other method or technology. This article is my opinion and not legal advice. I am a judgment broker and not a lawyer. If you ever need legal advice or a strategy to use, please contact a lawyer.
Stored data that can be discovered is called electronically stored information (ESI). The ability to delete or completely destroy ESI is reduced when data is backed up onsite or offsite. Deleting data completely is not a trivial task, as the most common way to delete a file is to remove its first letter/number character and make that disk space available for other data. As long as that specific file location has not been overwritten, the deleted file is still accessible and recoverable.
Modern operating systems will offer to “safely” delete files, but this is not a fail-safe. Commercially available cleaning programs do more than just delete files, they overwrite file locations multiple times with random characters, so that the deleted file is “cleaned up”.
However, the only “foolproof” way to destroy stored information is to physically destroy every hard drive or other storage device or system, where the file has ever been stored. Physical destruction of a computer device or file may include one or more actions to destroy the medium on which the data file resides; including media chipping, media burning or melting, extensive use of a hammer, degaussing, etc. If a file has already been sent over the Internet, it may never be completely destroyed.
Discovery of Electronically Stored Information (ESI) can be performed onsite, offsite, online, or offline. In civil matters, most information available offsite and offline is obtained through the use of a Subpoena Duces Tecum (SDT).
Data that may be requested with an SDT generally falls within the scope of Federal Rules of Civil Procedure (FRCP) 34(a). When the SDT requests documents and things that are not stored on paper, care must still be taken to ensure that the data remains usable, accessible and admissible in court. The witness or defendant is usually required to disclose the format of the ESI, and any required passwords, to allow the data to be reviewed by a court officer at the time specified by the court.
Whether in civil or criminal proceedings, whether in the case of trade secrets or malware, or where any other data-related evidence is required; electronically stored information (ESI) must be entered. The processing of ESI, once secured, is subject to the same chain of custody challenges as all other types of evidence. However, in ISE situations, since there are no paper documents, the handling and storage of ISE must be carefully managed by people specifically trained in these matters. The analysis and collection of evidence by cyber-crime technicians is performed on a digital copy of the original drive or media which is subject to examination. The objective is to avoid any risk of harming the original evidence.
In some cases, particularly where law enforcement is involved, the court may order the seizure of computers for forensic analysis, or may order a surreptitious intrusion under the guise of a search warrant or another form of subpoena.
When essential evidence is needed and there is a risk that such evidence will be suppressed, altered or destroyed; electronic discovery means can be accelerated by hacking into a computer or network system. Most cases of a computer or network being hacked under such conditions are carried out by government agencies executing search warrants. The type of media most often examined is one that is suspected of storing evidence of financial crimes, theft of trade secrets, or other potential Internet-related crimes.
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