What is E-Discovery?

You’ve no doubt heard of forensics (aren’t there about twenty different CSI, NCIS, and Law & Order shows circulating the air waves at this very moment, chock full of them?).  These are the scientific tools and processes used by law enforcement to gather evidence in order to solve crimes and provide for the prosecution of criminals.  There are many different types of forensics; some deal with bodily fluids while others might address ballistics, for example; but one that you may not have heard about is an area known as e-discovery, and it is quickly becoming the star of the courtroom.  By harvesting data from electronic devices like computers, smart phones, PDAs, tablets, and so on, lawyers can get the information they need to make or break a trial, in some cases.  Here’s how it works.

The process of e-discovery begins when a crime is committed (or in some instances, suspected).  It may be used by lawyers during the course of a trial, and this is the most common occurrence, but more and more corporations are also using it as a way to monitor employees.  Remember, if you’re working on a company computer or laptop, storing files and sending emails, or using a company-provided smart phone, the company owns whatever data is stored there, even if you’re using these devices to send out photos of your unmentionables (most likely grounds for firing).  So if you’re engaging in illegal, unethical, or amoral acts with company-owned devices, don’t be surprised if the IT department digs up enough dirt to get you called in by HR or your boss.

However, e-discovery is really more widely used in the legal profession and evidence may manifest in a number of ways.  Suppose a person is arrested on suspicion of having committed a crime and a cell phone is booked into evidence.  Data extracted from this device, including contacts, call records, emails, photos, and even downloads may be used as evidence in the course of a trial. The same goes for any other electronic devices seized in search of evidence and it gets even more complicated when it comes to computers, where not only files can be extracted, but also email records, including messages received and sent, dates, times, and of course, the email addresses of those communicating. Often, this data is collected by independent organizations, with search criteria provided by the legal teams.

Consider the recent trial of Casey Anthony, suspected of killing her young daughter, Caylee.  One of the pieces of evidence against her was that traces of chloroform had been found in the trunk of her car (where she was suspected of placing Caylee’s body).  The prosecution supposedly found several instances of searches for chloroform in the search history on her computer (which would prove premeditation).  However, it turned out that there was only one such search and it was claimed by the defense that it had been “accidentally” typed in when searching for something else.  Had the defense been unable to refute the claims of the prosecution in this regard, the outcome of the case may have been completely different.

In short, e-discovery is just one of many forensic tools that may be used in a trial, but considering how ignorant most people are of ways to hide their electronic footprints, it has lately become one of the best tools for nabbing the bad guys.