Electronic data discovery (e-discovery) has become increasingly important recently and is now in the mainstream of civil discovery. Recent surveys have indicated that more than 90% of all documents produced since 1999 were created in digital form. Popular web resources that feature articles looking at e-discovery issues include http://data-recovery.postbit.com/ and http://datareplayservices.com/, both sites have a strong bias towards hard drives and retrieving the data from them, sometimes forensically.
The increased importance of data discovery has been brought about, in part, by recent changes to rules in law which mandate that discovery is to include electronic discovery. To comply with the new rules and prevent spoilation, e-discovery must commence immediately upon the filing of action. Elements of the e-discovery process include the preservation of electronic evidence, the creation of a repository of all digital files, and a document retrieval system based on defined search terms. The scope of activity normally covert by e-discovery includes email and documents stored on individual computers and network servers as well as other devices. More and more we are seeing information stored on smartphones are being crucial to investigations – a large reason for this is that the modern day smartphone is capable of everything a computer is and also, a smartphone is small enough that it can be carried comfortable about the person. Additionally, further information is often to be found on smartphones that would not be found anywhere else. Obvious example include SMS text messages and application chats from Apps such as WhatsApp and Viber. But it doesn’t stop there, the smartphone is a huge source of GPS data and GPS data has a huge amount of uses. For example, GPS data can be used to tell where the phone has travelled to on certain days and times: a suspect may give a false testimony and even have a friend to confirm his story as to his location on a certain day, while his phone will tell a very different story.
Smartphones are also very sturdy things – whilst it can be a simple job to smash the screen on a smartphone, it is difficult to do any permanent damage to the internal components of the phone. Even if the phone is wrecked so much that it no longer works and will not switch on, it’s potentially possible to read the information from the phone’s memory chips – even if the motherboard is broken. The process known as JTAG’ing is explained in further detail here.
Many solicitors and barristers still fail to undertake electronic discovery due to concerns over cost, the time needed, and complexity of such undertakings, and so fail to appreciate that, compared to the discovery of nondigital information, e-discovery is much more cost effective. With the digitisation of all aspects of business, which has taken place over the last decade or so, there is now an incredible volume of electronic evidence available that can be collected, preserved, documented, and authenticated. The types of cases in which computer generated evidence is typically relevant include defamation, intellectual property theft, sexual harassment in the workplace, fraud, and breach of contract. It is also increasingly being seen in smaller cases, such as personal injury claims and wage disputes.