Electronic Data Discovery: Integrating Due Process into Cyber Forensic Practice

Abstract

Most organizations and government agencies regularly become engaged in litigation with suppliers, customers, clients, employees, competitors, shareholders, prosecutors or regulatory agencies that nearly assures the need to organize, retain, find and produce business records and correspondence, emails, accounting records or other data relevant to disputed issues. This article discusses some high visibility cases that constrain how metadata and content is routinely made available to opposing parties in civil litigation, to prosecutors in criminal prosecutions and to agency staff in regulatory enforcement litigation. Public policy, as implemented in the rules of evidence and pretrial discovery, restrict electronic data discovery (EDD) as it becomes a predominant and potentially costly pre-trial activity pivotal to modern litigation. This article discusses these constraints while identifying opportunities for the interdisciplinary activities among litigators, forensic experts and information technology professionals.