Litigation, evidence and the electronic age

The role of computer-based material is becoming vital to the modern litigation process.

With the explosion in the use of electronic documents, spreadsheets and email, the volume of information held on computers is growing rapidly. Litigators are finding that there is a considerable amount of relevant material obtained from electronic data and that it needs to be reviewed alongside any hard copy material.

It is becoming more usual to find evidence exclusively in electronic format. Statistics suggest that 90 per cent of all business documents are created electronically and 35 per cent never reach the printed page.

The quantity and quality of information available from electronic evidence should not be ignored in any litigation. However, like paper based information, electronic evidence can’t be taken at face value without considering the provenance of the material.

With the intelligent use of forensic technology, one can reconstruct the entire history of electronic material. Combining this with police evidence rules, investigators can collate more robust proof. It is vital that forensic technology has to be used correctly to ensure the proper and dependable interpretation of computer based material is suitable for use in the courts.

There have been cases where the in-house IT function has been asked to gather electronic material and have destroyed evidence during the process because of their lack of forensic knowledge and specialist equipment.

Document discovery can become burdensome given the volume of digital material. Previously during discovery exercises, teams would work through all the printed material to decide what is relevant to the case.

In the electronic age, the process has changed to those same teams being used to review electronic files as well as paper. This can take an extended period of time for large corporate systems where many terabytes of information are held.

New laptops can hold the same amount of information as a pile of printed paper the height of Ben Nevis. If one person could read a page a minute for eight hours a day, then it would take over 80 years to review this pile. Companies now have so much information in electronic format, that it is no longer practicable to review it using traditional techniques. Nor do traditional techniques handle the so called ‘metadata’ that is hidden within electronic files.

Examples of ‘metadata’ include Bcc entries in emails, dates embedded within documents and links to other files.

Forensic technology has risen to the challenge of disclosure and now it is possible to use appropriate forensic tools to quickly sift large volumes of material for electronic files that require further review.

Therefore forensic tools can be used to reduce costs of the discovery process and can cover all areas where electronic data might be held. With lower costs, the disclosure process becomes less onerous and less likely to become a weapon to be used against the other side.

A number of US courts have looked at the problems of proportionality for discovery. There appears to be no uniform approach but an emerging principle is that if a court considers a request for electronic disclosure to be unreasonable, the disclosure may nevertheless be allowed, but at the expense of the requesting party. This appears to be the result of a rigid interpretation of the obligation to produce the relevant documents whilst at the same time introducing a balancing factor designed to relieve businesses from oppressive discovery requests.

The discovery industry is pushing for material to be produced and companies can use technology to reduce costs or if not proportionate, expect the other party to fund it. Forensic technology can therefore help to satisfy the disclosure requirements whilst reducing the costs for all relevant parties.

In summary, companies have vast amounts of electronic information held on their systems. Forensic technology can provide a cost-effective method way of making sense of the content and filtering it down to manageable quantities for review.

In some instances forensic technology may be the only method of capturing and reviewing electronic material. It can be used to reduce costs during large scale disclosure exercises by focusing on the key areas and using specialist tools to assist the review process.

The electronic age is becoming a key part of the legal process and forensic technology can help make sense of it.

Phillip Sealey leads the forensic technology practice at Deloitte in London. He has spent the last 12 years working in this specialism and has dealt with some of the largest fraud cases in recent years, taking computer evidence from the original collection through to introducing it into court.

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