Digital Forensics for Lawyers: Uncovering Hidden Evidence to Win Your Cases

Learning Objectives:

• 1. Relevant evidence often resides in hidden places, and even deleted content (texts, emails and files) may be recoverable. U.S. litigants must also be mindful of what is, and is not, reasonably accessible, keeping Rule 26's (and state analogue) proportionality standards at the fore.
• 2. Jurisdictions provide different levels of protection for custodial data; be sure to rely on counsel with appropriate data-privacy expertise! What is reasonably obtainable in the U.S. can be treated quite the opposite in the EU, certain APAC countries, and elsewhere. International organizations would be wise to understand the dichotomies that might exist in jurisdictions where they have significant operations.
• 3. Plan with your clients up front by creating a case-specific data map of the organization’s information repositories; knowing what data the client has, and where to find it, can help mitigate spoliation arguments and uncover key evidence more efficiently. Organization data sources change frequently, and may have differing retention and deletion cycles. So planning at the outset of a matter can avoid major discovery headaches.