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Electronic evidence in everyday cases: don't assume that digital information is significant only in complex, tech-heavy cases. Even the most run-of-the-mill dispute can hinge on a piece of electronic evidence. Here, two lawyers explain how e-discovery factors into their employment and family law practices.

Article Excerpt
All in the family computer

Not long ago, litigation discovery was often a paper chase, a matter of ferreting out paper documents or records lurking in an opposing party's files or archives. Today, paper documents are just a part of the discovery picture. Increasing use of electronic communications and record-keeping means that all lawyers, including those who practice family law, must deal with "e-discovery."

E-discovery takes in three basic forms of e-information--writings, records, and demonstrative evidence. Such information is subject to civil discovery requests and the basic rules of discovery and admissibility (although proposed federal rule changes, likely to be followed in many states, may soon limit access to certain e-information (1)).

Your first challenge is to find the kinds of e-evidence that may exist--word-processing documents, graphics, e-mail messages and drafts, databases, computer-usage and operations information, calendaring, and scheduling and financial records. Then learn where the evidence is stored and what hardware, software, backup, and service or retention protocols are in use. The standard discovery devices--document production requests, interrogatories, and depositions--are the vehicles for this inquiry.

Once you find likely sources, frame specific discovery demands, again using standard discovery devices, to obtain relevant information without sparking document destruction or drowning in a sea of indecipherable data. A computer forensics expert can help identify what is retrievable, any risks of loss or spoliation, and how to retrieve and review the information disclosed.

Your demands might specify that information be disclosed in a computer-readable format (to facilitate your search for relevant items), that the opposing party provide data compilations and/or the keys and codes used to generate compilations, and that disclosures include the date and time stamps (metadata) of the information sought, so that not only will you know what the adverse parties know but when and how they knew it.

Once e-information is obtained, you need to consider how to read, store, and use it, with an eye to efficient location of relevant data, integrity of stored documents, authentication of evidentiary materials, and protection of proprietary or confidential information. E-information is usually admissible as a business record or an admission. As with all evidence, anticipate challenges to authentication, admission, and credibility.

Case in point

Let's say you represent a wife whose husband runs a family-owned corporation. In anticipation of the divorce, the husband has created numerous offshore shell corporations, to which he has transferred assets. He's also engaging in an Internet love affair or two. Given his history of asset and marital manipulation, you want to inspect the husband's computers to obtain essential financial and...

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