The December 2006 amendments to the Federal Rules of Civil Procedure (FRCP) changed how organizations must handle the discovery of electrically stored information (ESI). Counsel must now implement structured and defensible processes for the identification, preservation, collection and processing of ESI. Electronic discovery requires preparation and diligence in order to mitigate process attacks and possible sanctions. As a trusted partner, Binary Intelligence helps clients comply with the FRCP and reduce overall discovery costs by providing sound guidance and cost-effective services throughout all phases of the Electronic Discovery Reference Model (EDRM).

Effective e-discovery requires that parties fully understand the issues associated with this sometimes complex process. At minimum they should consider:

• the subject network infrastructure and potential stores of discoverable material
• the options for identifying, collecting, preserving, producing, and analyzing electronic data
• the implications of metadata and that critical data may be lost when a document is accessed, printed, or converted
• that ESI is easily altered (inadvertently or intentionally) and that there are important forensic procedures that should be employed to identify and counter spoliation

Electronic discovery immediately becomes an issue when an organization learns of, or anticipates pending litigation. At this point, it is necessary to implement a legal hold and suspend the destruction of any relevant electronic records until the litigation is settled. Any ESI purge, planned or otherwise, prior to settlement may result in sanctions. In order to comply, the scope, location, and form of potential evidence must be identified. It is important to notify data custodians, issue reminders to ensure that evidence is properly preserved, and prevent access by unauthorized individuals.

Given that electronic data discovery is often a precursor to expert forensic analysis, it is vital that produced evidence be properly supplied. Any unsuitable formatting or handling can severely limit the ensuing forensic examination result in sanctions. As such, e-discovery must be undertaken with caution. Litigants should consider retaining the services of trusted computer forensic experts. These experts work with corporations and attorneys to create an effective e-discovery strategy. Competent forensic computer examiners and e-discovery consultants can:

• assist with the identification of potential discoverable materials
• collect and preserve electronically stored information along with associated metadata
• process collected data
• help prepare for interrogatories and depositions
• carry-out the collection, authentication, analysis, and production of pertinent electronic data