/ LEGAL FEATURE
DISCLOSE OR
DISPOSE?
Companies Operating in the USA Need to Prepare Right Now
by Bill Dean Sword & Shield Enterprise Security
/ ENTRY
O
n December 1, 2006, the world of civil litigation changed One major obstacle to proper evidential preparation has
forever with the adoption of amendments to the Federal been insufficient technical explanation of the rules. This article
Rules of Civil Procedure that address electronically will cover some of the technical aspects of the updated rules.
stored information (ESI). As of that date, ESI officially attained
the same importance as paper documents in litigation. / Rule 26(b)(2)
Speaking from the trenches as a senior systems analyst in a This is known as the “two-tiered discovery” rule that divides
large company, I saw companies fearful of their new responsi- ESI into two categories depending on whether it is “reasonably
bilities and concerned about the impact on their operations. accessible.” The Federal Rules Advisory Committee had the
We technologists knew the type of information that was bur- foresight to recognise that while some ESI is easy to retrieve,
ied deep in computer systems and the difficulties in locating some is difficult, expensive, or impossible to retrieve. Easily
it. We were relieved to discover that the ”Safe Harbor” and the accessible ESI includes such instances as documents from a file
updated rules were restricted to cases in federal courts. server, or e-mails, that have not been deleted. ESI considered
Now however, many states have adopted rules similar not reasonably accessible may include backup tapes from previ-
to those contained in the Federal Rules of Civil Procedure, ous years or deleted information requiring forensic analysis to
concerning electronic discovery and digital forensics in litiga- recover and reconstruct. “Reasonable accessibility” is typically
tion. This alliance of Federal and state rules has given rise to determined by the expense or effort required to gather the ESI.
greater expectation of electronic discovery, so that the sense However, difficulty of accessing ESI alone will not necessarily
of relief described above is no longer justified. Since 70% of shield parties from their obligation to produce this data.
digital information remains unprinted and invisible, the poten-
tial for e-discovery is limitless; our work is cut out!
For companies or attorneys still wondering what e-discovery
is, the simplest definition is: the extension of the traditional
discovery process to information that is stored on computer
systems. Examples of ESI encountered will include e-mail[s],
word processing files, spreadsheets, and information from
company databases. This information will reside in a variety of
places such as corporate computers, corporate servers, smart-
phones, Internet servers, and even home computers.
The good news is that information in an electronic form
can be much easier to cull, analyse, and review. Technology
may have created the problem, but technology can also help
to solve it.
Electronic information can be stored and processed very
efficiently, but there are considerations that warrant caution.
ESI is particularly sensitive to alteration or destruction. Simple
acts such as turning a computer on or off could affect the
integrity and availability of information. Then, of course there
is the infamous metadata, special-purpose data that contains
unobvious and usually invisible information describing the
nature and context of the ESI, or other useful details. For
these reasons, ESI must be collected and handled forensically
to maintain its integrity.
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