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In the worlds of both law enforcement and private legal proceedings, e-discovery refers to the process of electronically uncovering evidence, or using digitally stored evidence, to augment evidence alleged in a lawsuit, Freedom of Information Act requests, criminal investigation, or, in the most “fibrous” cases, petitions from all three angles.
Like other forms of analog intel collection, potentially relevant data, as well as peripheral information, gathered through electronic discovery is subject to rules of civil procedure and requisite U.S. due rights processes, which authorize how to collect, present and apply evidence for each case in courts of law. The two main types of evidence regulated by civil procedure are:
While each state has its own laws governing the rightful use, collection, and application of electronic discovery, the uniform Federal Rules of Evidence govern the admissibility of evidence in federal trials and offer a good basis of general civil procedure laws, despite the aberrations found across state laws. The federal rules can be found here, on the official U.S. Courts’ website.
Reviewing these processes for privilege (“Did the discoverer have the right to seek this information out?”) and relevance before data are turned over to the requesting party is an important protection all citizens’ privacy, especially if, despite the prevailing allegations, the suspect is found innocent.
Nevertheless, as with the mostly untested waters of technological law enforcement and review, electronic discovery has its fair share of loose strings--particularly when civil procedure law is interpreted through the eyes of a highly motivated party.
The aglets to these frayed strings, Electronically Stored Information Discovery Law, otherwise known as ESI Discovery Law, or simply ED Law. Attorneys specializing in this practice area deal with cases ranging from billion dollar class-action suits, hinged just on the contents of a few incriminating emails, to the legality of lineage-tracking websites that helped the child of anonymous sperm donors discover the identity of his or her father.
On a day-to-day basis, however, most people looking for help with an ESI claim will find an ED attorney most useful for their deep understanding of admissibility of digital evidence, a highly concentrated area of law that most other attorneys, even in nearby practice fields, are not nearly as knowledgeable of.
Though many e‐discovery attorneys work in law firms serving corporate clients, offering services such as electronic discovery consultant, special counsel, e‐discovery specialist, and e‐discovery director, to name a few, a growing field of e-discovery attorneys have taken to the private citizen, particularly because of the wide range of valuable services they can offer their clients both in court or on the sidelines. Notably, e-discovery attorneys can provide:
ES lawyers are also trained to handle the unpleasant possibility that evidence beneficial for their client’s case has been tampered with or destroyed by an opposing party. A legal power known as spoliation sanctions allows an attorney to request the court for fines, or additional attorney fees in this event. Most importantly, they may also request instructions be given to the jury, whereby the jury may (or must) consider that the destroyed evidence would have been unfavorable to the party that destroyed it.
This may become necessary if, for instance, a videotape that existed showing a slip and fall accident in a grocery store is mysteriously erased or is in bizarrely poor condition. In this event, the court can suggest to the jury, or directly instruct the jury to assume, that the alleged recording would have been unfavorable to the store, and the jury should proceed in their deliberation as though the described incident was presented to them visually. The same principle applies to emails and other sensitive digital files.
Every day, ESI becomes exponentially more diverse, voluminous, and widespread. But have no fear, we're here to help. If you need help with a case involving any of the issues we’ve discussed here today, don’t hesitate to ask the lawyers.
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