Electronic Data Discovery:
Integrating Due Process into Cyber Forensic Practice
 

John W. Bagby
Professor of Information Sciences and Technology
College of Information Sciences and Technology
Co-director Institute for Information Policy
The Pennsylvania State University
301C IST Bldg
University Park, PA 16802 USA
jbagby@ist.psu.edu

John C. Ruhnka
Professor of Law and Ethics
Academic Director of the Bard Center for Entrepreneurship
Graduate School of Business Administration
University of Colorado at Denver and Health Sciences Center
1250 14th St., Suite 242
Denver, CO 80217-3364 USA
John.Ruhnka@cudenver.edu

ABSTRACT

Most organizations and government agencies regularly become engaged in litigation with suppliers, customers, clients, employees, competitors, shareholders, prosecutors or regulatory agencies that nearly assures the need to organize, retain, find and produce business records and correspondence, e-mails, accounting records or other data relevant to disputed issues. This article discusses some high visibility cases that constrain how metadata and content is routinely made available to opposing parties in civil litigation, to prosecutors in criminal prosecutions and to agency staff in regulatory enforcement litigation. Public policy, as implemented in the rules of evidence and pretrial discovery, restrict electronic data discovery (EDD) as it becomes a predominant and potentially costly pre-trial activity pivotal to modern litigation. This article discusses these constraints while identifying opportunities for the interdisciplinary activities among litigators, forensic experts and information technology professionals.

Keywords: electronic data discovery, cyber forensics, pre-trial discovery, litigation hold, spoliation, obstruction of justice, electronic records management, metadata

“As a litigator, I will tell you documents are just the bane of our existence.
Never write when you can speak. Never speak when you can wink.”¹

1. Statement of panelist Jordan Eth, Sarbanes-Oxley: The Good, The Bad, The Ugly, Nov.10, 2005, panel hosted by the National Law Journal and Stanford Law School’s Center on Ethics, reprinted in National Law Journal, 12 December 2005.