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electronic discovery (e-discovery or ediscovery)

Electronic discovery (also called e-discovery or ediscovery) refers to any process in which electronic data is sought, located, secured, and searched with the intent of using it as evidence in a civil or criminal legal case.

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Electronic discovery (also called e-discovery or ediscovery) refers to any process in which electronic data is sought, located, secured, and searched with the intent of using it as evidence in a civil or criminal legal case. E-discovery can be carried out offline on a particular computer or it can be done in a network. Court-ordered or government sanctioned hacking for the purpose of obtaining critical evidence is also a type of e-discovery.

The nature of digital data makes it extremely well-suited to investigation. For one thing, digital data can be electronically searched with ease, whereas paper documents must be scrutinized manually. Furthermore, digital data is difficult or impossible to completely destroy, particularly if it gets into a network. This is because the data appears on multiple hard drives and because digital files, even if deleted, can be undeleted. In fact, the only reliable way to destroy a computer file is to physically destroy every hard drive where the file has been stored.

In the process of electronic discovery, data of all types can serve as evidence. This can include text, images, calendar files, databases, spreadsheets, audio files, animation, Web sites and computer programs. Even malware such as viruses, trojans and spyware can be secured and investigated. Email can be an especially valuable source of evidence in civil or criminal litigation, because people are often less careful in these exchanges than in hard copy correspondence such as written memos and postal letters.

Computer forensics, also called cyberforensics, is a specialized form of e-discovery in which an investigation is carried out on the contents of the hard drive of a specific computer. After physically isolating the computer, investigators make a digital copy of the hard drive. Then the original computer is locked in a secure facility to maintain its pristine condition. All investigation is done on the digital copy.

E-discovery is an evolving field that goes far beyond mere technology. It gives rise to multiple legal, constitutional, political, security and personal privacy issues, many of which have yet to be resolved.

This was first published in September 2010

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