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The requesting party’s list of electronic documents and e-mails may
be just the first wave of numerous requests leading up to an inevitable
conclusion on their part that necessitates the pursuit of deleted data
residing on your client’s computer(s). In other scenarios, a requesting
party may opt to include a computer forensic examination of your
client’s computers right out of the gate. In either situation, your
client shouldn’t be hearing for the first time that deleted data is
indeed discoverable in a civil litigation matter upon your being served
with the request.
It
is important to take the time to discuss the rules of e-discovery early
on with the client-as in before a lawsuit is filed if there is any
suspicion that there is a strong likelihood of that occurring. The
client needs to understand what reasonable precautions must be put in
place to preserve evidence |
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relevant to the case. The client should be advised to seriously
consider having all of the hard drives on which relevant data might be
stored (file servers, e-mail servers and other computers) forensically
imaged in order to preserve the integrity of any data from inadvertent
spoliation. This can be accomplished at the client’s convenience which
helps to keep costs down.
Once
these hard drives have been forensically imaged, requesting that the
forensic specialist conduct a preliminary examination of the hard drives
for deleted files relevant to the case might be an effective way of
double checking the veracity of the client’s depiction of what did and
did not transpire. Such a review might result in a revised strategy
before things go too far in the wrong direction. On the other hand,
CyberControls has seen numerous instances in which exculpatory evidence
was recovered that helped turn the case a full 180 degrees.
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