"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence."
-John Adams
The way evidence is gathered has changed over the years. Now we are in an era where electronic discovery (e-discovery) becomes more important daily as the way we communicate and gather information is concentrated in the land of technology more than paper. There are guidelines for e-discovery in the Federal Rules of Civil Procedures and many states have added their own rules over the past few years.
E-discovery is the part of legal evidence that is in an electronic format. Electronically stored information such as emails, instant messages, documents, accounting databases, videos, photos, websites, voicemails, and smartphone data fall into that category. Under discussion right now is how much of what people post on social networking sites may be included as admissible. There are forensic investigators for electronic data who can access metadata and raw data in addition to the more common categories to add to a body of evidence.
There are anti-forensic technology tools out there that claim to cover your electronic tracks. Some employees may want to eliminate potentially damaging digital footprints like pornography, e-mail, chat, internet gambling, and even online shopping by these means. However, use of that software does nothing but serve to deflect a case from its merits faster than proof a party has intentionally destroyed or altered evidence.
E-discovery is adding a new layer of complexity now in this era of large-scale data gathering. A recent case, U.S. v. Maynard, 615 F.3d 544, 555 (D.C. Cir. 2010), considered whether evidence obtained by police through the warrantless use of a GPS device to track appellant Antoine Jones' movements for a month was properly admitted. Jones argued that the use of the GPS device violated the Fourth Amendment prohibition of unreasonable searches. The countering argument stated that there was no Fourth Amendment violation, as Jones had no reasonable expectation of privacy when traveling on public thoroughfares.
No expectation of privacy continues to be a good policy for anything that we do out in the digital world, from making a cell phone call to using our GPS. To put it in some perspective, according to the 2010 Digital Universe (DU) Study, in 2009 the DU grew by 62% to nearly 800,000 petabytes. A petabyte is a million gigabytes. Picture a stack of DVDs reaching from the earth to the moon and back.
In 2010, the DU grew to about 1.2 million petabytes, or 1.2 zettabytes. This explosive growth indicates that by 2020, our DU will be at least 44 times as big as it was in 2009. That means our stack of DVDs would now reach halfway to Mars.
That’s an astounding amount of digital data to process, store and potentially retrieve! As data creation continues to expand exponentially, there will be new techniques and technologies developed to deal with it. E-discovery will become a large field of expertise for lawyers. It will be up to us to remember to have no expectation of privacy when anything digital or electronic is involved.
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