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Many lawyers are still unaware of some of the basic steps behind the procurement of digital evidence. In many ways, the basics are not too different from typical civil discovery -- it's just that the medium is different (and more impermanent).
Here are some tactical considerations you should keep in mind next time you want to get your hands on your opponent's evidence. And remember, discoverable evidence is a much bigger set than admissible evidence. Make it a part of your pretrial discovery strategy to go for the jugular.
1. Preservation of Evidence Letter: Protective Order
Step one is to make sure that evidence doesn't disappear. The reality of the situation is this: computer hard drives are easy to get rid of. Fortunately, however -- a good chunk of relevant evidence is now kept online on the cloud. So there is a time stamp on changes. This could help you in the future, if you're the party attempting discovery.
But getting back to drives and other physical evidence, you must issue a preservation of evidence letter and send it to all interested parties in order to place them on notice of an intent to initiate discovery. Theoretically, this means parties should respect this notice. If you want to be more forceful, consult your local court for the protective order procedures.
2. Other Motions to Consider
Other pleadings and motions to keep in mind are the commonly-used discovery pleadings like the form interrogatories and the requests for admission. But actually, you may want to consider bypassing the forms entirely and get a little more aggressive by using pleadings instead.
You will also want to make sure that all production requests come complete with a request for both electronic forms and physical forms of the evidence sought. The easiest way of doing this is by broadly defining "documents" to include electronic forms, email, and other electronically stored data. This is now so routine with these types of cases that judges will most likely indulge most requests.
3. Hire an Expert
Once you get the data, you'll have to pull a few favors or spend a few dollars to understand what it is you're looking at. Emails are one thing, but slight changes in networks and cloud computing data is another thing entirely. Most lawyers are not competent to make connections between sensitive electronically stored data and causation. Go and hire an expert.
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