Litigation 101 for eDiscovery Tech Professionals: Properly Handling Evidence
January 23, 2013
** This blog series is intended to introduce new eDiscovery professionals to the litigation process and litigation terminology. Click here, here, here, here, here, here, here, here, here, here, here, here and here to go to the first thirteen posts in the series.**
In the last couple of posts in this series we covered the first phases of the Electronic Discovery Reference Model – Information Management, Identification and Preservation – and we focused on these tasks from the perspective of the litigators. The next two phases – Collection and Processing – are technical in nature and typically not handled directly by attorneys (attorneys should, however, be involved in making decisions regarding how this work will be done and in monitoring the status of this work).
As a litigation technician, you probably handle these tasks. Of course it’s important that you do this work “right” – that is, that you collect all the ESI that you are supposed to and that processing is done per agreed upon specifications. It is, however, equally important that you do this work in a way that preserves the integrity of the documents and that is defensible in court.
We’ve all seen courtroom dramas where law enforcement officers put on gloves before picking up a murder weapon, place it in a sealed bag, and sign it in to a locked and guarded evidence room. If the evidence needs to be removed form the evidence room before the trial (for example, for testing), it is signed out and records are maintained regarding its handling. These steps are all taken to preserve the integrity of the evidence and so that it can be demonstrated that the evidence has not been tampered with or altered. Documents need to be handled with equal care. You need to do your work in a way that precludes alteration, and you need to keep careful records so that the integrity of the documents can be demonstrated in court. In practice, this means two things:
- You need to use tools and techniques that collect and process data in a forensically sound fashion.
- You need to maintain chain of custody records that document where ESI came from, who handled it, what was done with it, how it was done, when it was done, and what tools were used. These chain of custody records need to reflect all ESI activity throughout the discovery process.
This white paper includes a good explanation of handling electronic evidence and maintaining chain of custody records.
In next week’s post, we’ll talk a bit more about some of the EDRM steps and how they fit into the bigger litigation picture. Please let us know if there are specific litigation topics that you’d like to see covered in this blog series.Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.