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    3 key questions for establishing chain of custody in your eDiscovery

    November 16, 2016

    By Jeff Salling, Director of Business Development, CDS.

    The challenges of eDiscovery are still being discovered as litigants and courts become more sophisticated in dealing with electronic information. One area that is getting increasing attention is how to ensure the digital chain of custody – that is, establishing that electronic evidence presented to the court is the same as what was originally collected. The problem is that electronic information is easily changed or deleted and the record of the changes can be difficult to document. That leaves such evidence potentially vulnerable to legal challenges.

    There are 3 key questions parties need to consider in order to ensure electronic evidence is authentic and accepted by courts. They include:

    1. How was it collected? Several courts have held that a screenshot or print out is not enough alone to prove a document is authentic. (See U.S. v. O’Keefe, 537 F.Supp.2d 14 (2008)). Metadata should also be collected specifying when, where and who collected and preserved the information. A systematic process should also be put in place for documenting this information. Software can help with this, but it must capture full and accurate representations of the data for legal purposes.
    2. How was it preserved? Metadata can be easily and inadvertently changed. Simply accessing a document can cause problems. For example, every time someone views a document, it will change the date of last access, who last accessed it, and potentially, the last date it was modified or saved. Therefore, it’s essential to preserve the metadata by immediately making a forensic copy of the information. The copy can then be used for working purposes while the original is maintained exactly as it was when collected.
    3. Who collected the evidence? Often it is the litigant or the law firm that is collecting and preserving the electronic evidence. However, that means if there is a legal challenge, they may need to testify and could be vulnerable to charges of tampering since they have a vested interest in the case. Accordingly, it can be beneficial to have a third party involved who can effectively manage the chain of custody and testify about the procedures used and the authenticity of data if needed.
      A proper chain of custody is essential in eDiscovery. In fact, it can help authenticate evidence even where the original source of the data has been lost and only the copy remains. (See Jones v. Union Pac. R.R. Co., No. 12 C 771, 2014 WL 37843 (N.D. Ill. Jan. 6, 2014)). To date, there haven’t been many legal challenges to the chain of custody in the realm of electronic data, but it’s only a matter of time.

    Electronic evidence has become a major component of virtually every type of litigation and awareness of the issues surrounding its use is growing. Litigants who are lax about establishing a clear chain of custody leave themselves open to legal challenge and sanctions for spoliation of evidence.

    To learn more about how we can help you with data collection and preservation, contact us for a consultation.

    About the Author

    Brad Janssen, Director of Professional Services, CDS New York

    Brad Janssen is CDS’s Director of Professional Services and oversees our Project Management and Advisory Services teams.  Brad and the CDS Project Management team take a solutions driven, consultative, and above all, client centric approach in advising law firms, corporations, and government agencies on efficient and defensible eDiscovery strategies. Laser focused on consistent and quality services, Brad oversees both the tactical and strategic application of technology to civil & criminal litigations, regulatory matters, and internal investigations.

       bjanssen@cdslegal.com