FORENSIC FILES: Times are changing: Electronic evidence is different

By The West Virginia Record | Sep 11, 2009

Sammons

By JOHN SAMMONS

HUNTINGTON -- Love it or hate it, electronically stored information (ESI) is becoming a major factor in courtrooms all across our country.

Rule changes are now commonplace and are helping the legal system catch up with our exploding digital society. For example, the Federal Rules of Civil Procedure were changed in December of 2006. Arnold Schwarzenegger, Governor of California, recently signed into law new ESI rules in that state.

As a first step in dealing with this sweeping change, we should recognize that ESI is different than paper evidence and can't be treated as such. Failing to understand and address these differences can prove perilous for both attorney and client. Let's take a look at the major differences and challenges presented by digital information.

The first challenge with electronically stored information is the sheer volume. The amount of data we have today is staggering, if not mind blowing. To boot, it is growing at an ever-alarming rate. The Internet research company IDC estimated that in 2006, there were 3 million times more data created than all of the books ever written. That is truly a mind-bending number.

Another aspect is the duplicability. Let's use e-mail as an example. Simply "cc" three co-workers in an e-mail and you have instantly created five copies of the same data. Backups and alternative devices or media also provide a haven for duplicates. Examples would include cell phones, iPods, external hard drives, flash drives, and CDs, just to name a few.

Like many bad habits, ESI is hard to get rid of. Most of us know by now that deleted data isn't. Those one's and zero's can and will stay on that hard drive until they are overwritten or the drive is physically destroyed. Even overwriting data isn't a guarantee. The U.S. Department of Defense recommends that data be overwritten no less than three times before they consider it unrecoverable.

Electronically stored information is easily changed. That's why a printed copy of an electronic file is not the best evidence. With a printed copy, you have almost no way to verify the integrity of the true evidence. Looking at the paper, you will have a tough time determining if it has been modified. The original digital version provides for ways that make that process better and far more reliable.

Digital documents carry along with them information that can tell us many things. For instance, they can tell us who created the document, when it was created and when it was modified. This information is called metadata. Metadata is simply "data about data." As valuable as metadata can be, it's important to note that metadata is not full-poof and can be removed all together. I'll bet that many of your firms remove the metadata from your electronic documents before they are sent out the door. This process, called "scrubbing", and is becoming more and more mainstream. In fact, the latest version of Microsoft Word even provides this option under the "File" menu.

Take a printed copy of a brief out of your office and you can still read it whether you are in Barboursville or Berlin. That can't be said for digital information. Remove an excel file from the appropriate computing environment, and it becomes an incomprehensible string of digits. This problem compounds further with older or "legacy" data. The hardware and software used to create these files may have long gone out of fashion years ago and may be hard, if not impossible to find. eBay has proven to be a lifesaver on more than one occasion when dealing with legacy data.

It's long been said that technology has shrunk the world we live in. Far away cities and countries are now only a mouse click away. With a click of that mouse, our information can speed over the Internet to Barbour County, Berlin or Bangladesh. Dispersion is therefore a significant problem. Again, using email as an example, we can instantly spread relevant documents across the globe in much less time than it takes to turn a page in this newspaper. That data may prove vital to your case. The challenge then becomes not only locating the relevant data, but recovering it across these often-vast jurisdictional lines as well.

Despite these complications, ESI does have one distinct advantage over paper. Electronically stored documents are far more efficient to search. There is no longer a need to print and review ream upon ream of paper. Using computers and search technology, this massive digital "haystack" can be culled fairly quickly and efficiently as compared to its paper cousin.

I hope sharing these differences and challenges has gotten you to think about electronic discovery. This issue is gaining momentum and will have a major impact on how discovery is done today and well into the future. This must be addressed for the sake of both you and your client.

Sammons is an assistant professor in the Marshall University Department of Integrated Science and Technology. He also is co-founder and CEO of Second Creek Technologies, a digital forensics and electronic discovery company located in Barboursville, W.Va.

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