Digital Evidence -- It's Everywhere

Lora Bentley

We've talked a lot lately about what the digital revolution means in terms of litigation readiness. More often than not, the new Federal Rules of Civil Procedure ondiscovery of electronically stored information always feature prominently in those discussions, because they drastically change the implications of losing or otherwise failing to preserve electronically stored information that may be relevant to litigation.

Needless to say, then, I was not at all surprised that one-fourth of my two day continuing education last week was devoted to issues surrounding digital evidence.

In addition to relating cautionary tales like this one, posted by attorney Eric J. Sinrod at this week, our speakers, Kentucky attorneys Michael Losavio and Jennifer Hans, gave us a thorough outline of what the new discovery rules require, what electronically stored information is and how it comes up in both criminal and civil litigation.

Three things in particular bear repeating:

  • First, the same admissibility test applies to digital evidence as to other evidence. The digital nature of evidence doesn't make it more (or less) admissible than other evidence.
  • Second, our speakers reminded us that electronic information is stored in a wide variety of places, including hard drives, RAM, cell phones, PDAs, flash or thumb drives, and even MP3 players. Losavio and Hans indicated that cell phones and MP3 players can house a wealth of information. (As an example, see this ZDNet post.)
  • Third, they also reminded us that digital evidence encompasses more than e-mails, instant messages and other electronic documents (such as Microsoft Word and Excel files, or Adobe Acrobat PDF files). Digital evidence also includes metadata that may be attached to the files (time stamps, who created them, who accessed them when, etc.).

Editor's Note: This post was compiled for information purposes only and is not intended as legal advice.

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