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E-Discovery is here. Are you prepared?

Overview of E-Discovery

       On April 12, 2006, the U.S. Supreme Court approved a comprehensive package of amendments to the Federal Rules of Civil Procedure (FRCP) that specifically addressed the discovery of " electronically stored information" or (ESI). The new rules have been transmitted to Congress and have become effective as of December 1, 2006. The new rules will require a number of important changes in the way discovery concerning e-mails, spreadsheets, voice messages, documents, and a host of other ESI and digital data. At a minimum, preparing a plan to respond to these voluminous changes will require advance time, knowledge and planning. TMD Computer Forensics is prepared to assist in this complex litigation process from beginning to end, at the request of the client. Mr. Competello has received extensive training in E-Discovery procedures , Federal Rules of Civil Procedure (FRCP), digital evidence,digital chain  of custody, and digital forensics, and has also earned status as a court recognized expert as a Certified Forensic Consultant (CFC) by the American College of Forensic Examiners Institute, (ACFEI).

       The current amendments revise or amend FRCP Rules 16, 26, 33, 34, 37, 35 and Form 35. Additionally, the District of N.J. Local Civil Rule 26.1.d, has already been amended to reflect the FRCP Rule 26 mandates. This includes a MANDATORY duty to "meet and confer" in regards to ESI and other digital discovery matters that are pertinent in the litigation at hand.  The text of the amended rules can be found by clicking on this link, http://www.uscourts.gov/rules/archive.htm.

       As this technology continues to play a larger and more vital role in litigation and internal company investigations, attorneys and law firms are expected to understand the inner workings of computers, digital data, electronic evidence, and how they relate to computer conduct issues. TMD can assist clients in this difficult and complex area, and can be best viewed as a "strategic partner" in a litigation matter, not just an ordinary expert. Since data forensics is still a very mysterious topic, it is likely attorneys will need to take crucial direction from a Data Forensics expert. Moreover, if the matter continues to trial, TMD will provide competent and professional testimony, including a strong command of forensic tools and accepted processes, managing a digital chain-of-custody, and clearly illustrate the appropriate findings which support the legal theory of the issue at hand.

What Can TMD Provide Your Firm?

       TMD Digital Forensics can provide not only a professional report of the findings of an examination to the client, but also will be able to assist in the following areas, that me be new or foreign at attorneys. For example, TMD can:

  • Outline the case strategy as it pertains to Electronically Stored Evidence or (ESI) including FRCP Rule 16.c( Pretrial Conference on ESI)
  • Assist in the drafting of a preservation letter to the adversary and to the client
  • Assist with educating the court/attorney on the need for preservation and discovery requests
  • Determine what, if any, physical digital evidence should be analyzed
  • Assist with the discovery process, including, interrogatories, depositions, motions for sanctions, summary judgment and more
  • Provide case specific advice on interrogatories, production of documents and ESI, non-waiver and confidentiality agreements
  • Provide a strong working knowledge of state and federal discovery rules, including the District of New Jersey Local Rule 26.1(d)
  • Perform forensic examinations, as a court appointed expert, as appropriate

       TMD will conduct an interview with the client, after the requested digital evidence has been duplicated and stored. This interview will determine the direction the strategy the client desires, after counsel understands the technical approaches, then a final decision on the data will be made. In summary, the failure to properly analyze digital data, is at best, inexcusable and, at worst, infective assistance of counsel and can lead to court imposed sanctions, spoliation issues, granting of summary judgment, and possibly the outright dismissal of the lawsuit. With so much evidence "hidden" on computers, data forensics considered unknown just a few short years ago, is now considered a standard and routine practice in legal matters of all types. Data forensics is a stone that cannot be left unturned, to do so will inevitably weaken and damage your litigation and severely hamper chances of a legal victory for your client.

       For further information, including a free consultation please contact TMD at support@tmdcomputerforensics.com


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