Examining Hard Drives During Discovery

Over-stuffed file cabinets that hold business records and personal information have been replaced by compact computer hard drives that offer easy and convenient storage of and access to a variety of items, including correspondence, forms, memos, photos, account information and Internet transactions.

As a federal district court judge recently observed, a computer itself is not evidence in most cases, but merely the instrument for creating evidence (like a typewriter) or the means of storing it (like a file cabinet).

Accordingly, today's litigants routinely seek access to opponent's computer hard drive to search for discoverable evidence, especially when the opposing party may not be forthcoming about deleted or transferred files.

A Proactive Approach to E-discovery

In December 2006 the U.S. Federal Rules of Civil Procedure were amended to address electronically stored information, with the result that ESI is now subject to discovery, meaning it can be requested as evidence in court cases.

Most corporate legal departments understand these changes, but many company management teams and departments that create and manage ESI may not be aware of their exposure should they get involved in litigation. The consequences of not creating a proactive electronic discovery (e-discovery) process can be fines, unfavorable judgments and increased operating costs. All of these can result in diverting attention from running the business, as well as costs in money, time and corporate reputation.

How the IT department can prep for the courtroom

The mountains of electronic data generated within today’s enterprises are colliding with ever more aggressive legal discovery practices, creating formidable IT challenges during litigation - how to best provide secure and auditable access to sensitive corporate data that must otherwise remain inaccessible to both outsiders and most insiders. More importantly, how can control be maintained without exposing more corporate data than necessary?

These decisions are best shared between the network or IT manager, corporate counsel and a litigation support specialist, who will help identify and specify the appropriate data. But it’s the IT manager’s job to ensure that data is treated gingerly; enterprises don’t spend millions on network security only to offer up the corporate jewels at the first lawsuit.