Whether you are a civil litigator, a client, or pursuing a case Pro Se, the term “forensic” will come up as you enter into discovery, and most especially with electronic discovery.
At the most basic level, Black’s Law Dictionary defines “forensic” as “belonging to courts of justice” – yet from here the word forensic as it pertains to discovery may pertain to distinct aspects of the discovery process such as “forensic accounting” and “computer forensics”, the latter which can be a launching pad in today’s arena of E-Discovery.
Indiana attorney Helen Geib writes the following in her blog entry, When Is A Copy A Forensic Copy?:
“Every field has its own jargon seemingly designed to confound the uninitiated. EDiscovery is no exception. A good example is the use of the word ‘forensic’. The standard dictionary definition of forensic is ‘connected with legal matters’. That definition would certainly seem to apply given the field at issue, but in practice eDiscovery practitioners typically mean something much more specific.”
The importance of the discovery process with regard to successful civil litigation cannot be underestimated, hence the importance of understanding, and knowing to how access, secure, and preserve forensic information. This often involves having hard drives from computers analyzed by computer forensic expert. This brings us back to an earlier blog topic, Spoliation and Duty of Reasonable Search and Production. Both parties need to be highly observant of the rules surrounding the discovery process, most especially with regard to how said rules pertain to obtaining and preserving forensic copy. However, due to the increase costs associated with obtaining forensic copies, it is also key to know if the court is indeed requiring you to proceed in that direction.
Just as there are many rules surrounding forensic copy, there are some costly myths about this topic as well. Matthew Nelson writes the following in his blog entry, The Top 3 Forensic Data Collection Myths in EDiscovery:
“Unnecessarily making forensic copies results in more downstream costs in the form of increased document processing, attorney review, and vendor hosting fees because more ESI (electronically stored information) is collected than necessary. The simple rule of thumb is that the more ESI collected at the beginning of a matter, the higher the downstream eDiscovery costs. That means casting a narrow collection net at the beginning of a case rather than ‘over-collecting’ more ESI than legally required can save significant time and money.”
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