Electronic Discovery

Legal Informatics Blog posted a couple of interesting developments in the e-discovery world:

National, Case-Based Civil Rules Survey: Preliminary Report to the Judicial Conference Advisory Committee on Civil Rules (October 2009)
<snip>
Second, this month the United States Court of Appeals for the Seventh Circuit launched an Electronic Discovery Pilot Program, and published a Statement of Purpose and Preparation of Principles (Oct. 1, 2009) respecting that program.

via eDiscovery Developments in US Federal Courts « Legal Informatics Blog.

The Litigation Manual “What Works: Evidence from a Trial Judge’s Perspective” Click the link below.

The Litigation Manual: First Supplement – Google Books.

The Volokh Conspiracy has a nice article discussing District Judge William K. Sessions III ruling compelling a defendant to decrypt his hard drive for an investigation against him.  The defendant tried to invoke Fifth Amendment protection against self-incrimination however Judge Sessions ruled his prior compliance in the investigation rendered the protection invalid:

“Where the existence and location of the documents are known to the government, “no constitutional rights are touched,” because these matters are a “foregone conclusion.” Fisher, 425 U.S. at 411. The Magistrate Judge determined that the foregone conclusion rationale did not apply, because the government has not viewed most of the files on the Z drive, and therefore does not know whether most of the files on the Z drive contain incriminating material. Second Circuit precedent, however, does not require that the government be aware of the incriminatory contents of the files; it requires the government to demonstrate “with reasonable particularity that it knows of the existence and location of subpoenaed documents.”

Boucher accessed the Z drive of his laptop at the ICE agent’s request. The ICE agent viewed the contents of some of the Z drive’s files, and ascertained that they may consist of images or videos of child pornography. The Government thus knows of the existence and location of the Z drive and its files. Again providing access to the unencrypted Z drive “adds little or nothing to the sum total of the Government’s information” about the existence and location of files that may contain incriminating information. Fisher, 425 U.S. at 411.

Boucher’s act of producing an unencrypted version of the Z drive likewise is not necessary to authenticate it. He has already admitted to possession of the computer, and provided the Government with access to the Z drive. The Government has submitted that it can link Boucher with the files on his computer without making use of his production of an unencrypted version of the Z drive, and that it will not use his act of production as evidence of authentication.

Because Boucher has no act of production privilege to refuse to provide the grand jury with an unencrypted version of the Z drive of his computer, his motion to quash the subpoena . . . is denied.”

via The Volokh Conspiracy – District Court Overturns Magistrate Judge in Fifth Amendment Encryption Case:.

The following is my often updated list of forensic resources I frequent on the web:

Tools

• Computer Forensic Resources
• Open Source Forensic Tools

Weblogs

• Windows Incident Response

General

• The Electronic Evidence Information Center

I stumbled across a searchable database of e-discovery case law and have left it open in my Firefox tabs for weeks now.  I’ve done a few preliminary searches and found it interested.  The site seems to be maintained by a large law firm (K&L Gates) and through a blog site they maintain called Electronic Discovery Law.  From their excerpt about the database:

“Search hundreds of cases collected from state and federal courts involving electronic discovery issues by keyword, or by any combination of 28 different case attributes, including on-site inspection, format of production, allegations of spoliation, or involving data that is “not reasonably accessible,” etc.”

Hope you find this resource helpful and kudos to the team at K&L that support this.