You can probably change your own oil, but you probably can’t swap out your transmission. While both tasks can be considered manual and labor intensive, the transmission requires a lot more finesse.
The same holds true with computers and their digital evidence.
A computer forensic operation requiring a tight chain of custody and a crystal clear need for top notch technicians is a far cry from an e-discovery request for the contents of what is essentially a file cabinet with a racy exterior.
It’s positively vital to know the difference.
As has previously been discussed in Electronic Discovery 2012: Coming Back to Earth Via the “Cloud”, computer forensics and e-discovery are not necessarily synonymous, and they can be mutually exclusive.
Computer forensics, as we once conceived of it, has changed. The field is no longer as immutable as it once was. Instead, we face a landscape that is now returning to what is was before, a paper (or “paper-like”) process where the results are what one’s adversaries provides, and the “smoking guns” are the product of circumstantial, as opposed to direct, evidence.
Welcome back to the age of lawyering. The “gotcha” moments from a single hard drive are giving way to the old fashioned grind of analysis and cross examination. Discovery is discovery again.
How can counsel parse the parameters of the new digital reality? The answer is now what it has always been: a keen knowledge of the adversary’s discovery sources and demands tailored to leverage the best possible outcome.
The brief era of an all encompassing “black box” computer hard drive is once again yielding to the traditional concepts and the rules of evidence.
In this environment, there are a tremendous amount of e-discovery firms that can process in-house, with the right guidance from their IT/e-discovery/computer forensic professionals.
Specialized vendors that understand this, and have the experience and adaptability to work within various environments can be a great ally, while ultimately translating into tremendous savings in overall e-discovery costs.
This article written and submitted August 8, 2012, by:
Michael P. Reynolds, JD – President of Michael P. Reynolds, PC
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