The Top Five E-Discovery Cases of 2007

As the one year anniversary of the amended Federal Rules of Civil Procedure (FRCP) approaches, our friends at Kroll Ontrack (one of the industry's largest providers of electronic discovery and forensics services) laid out a breakdown of important electronic discovery opinions from 2007, as well as a list of the year’s top five most significant discovery cases. Focusing primarily on interpreting the new FRCP, common topics reoccurring in judicial opinions issued in 2007 included: the importance of early case conferences, the accessibility of electronically stored information, and what to do when parties fail to play by the new rules. Among the five: the historic Lorraine v Markel decision, in which the Magistrate judge ruled emails inadmissable as evidence because of questions as to their authenticity. The court held there is a five-point test in determining the admissibility of electronic evidence. ESI must be 1) relevant, 2) authentic, 3) not hearsay or admissible hearsay, 4) the "best evidence", and 5) not unduly prejudicial. The court stated, "it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future motions practice or at trial, [and] counsel should know how to get it right on the first try."

Establishing Authenticity: Is Hashing Enough?

ProofSpace technology wonk Jacques Francouer writes "There has been extensive discussion and use precedent in the legal and security fields around hashing, its use and its value--real and perceived. Even though its robustness and usefulness are incontrovertible in the security world, hashing's perceived value in the legal field (for the purpose of establishing the authenticity of Electronically Stored Information) could benefit from some clarification. For a hash to be secure and useful for legal applications, there must be some additional mechanism to protect and preserve the unique association between the data that is hashed, a trusted time datum, and the original hash result." Read more of his discussion right here.