Identification and Preservation of Evidence. Preservation of evidence begins by identifying with your client the computers that were used to create, modify, process, and archive data relevant to the litigation. Counsel can advise client of cost savings and benefits of creating forensic images of each relevant computer to preserve and analyze evidence, including evidence that is invisible to the computer’s operating system. Counsel ought to also place the opposing party on notice of its duty to preserve evidence, pending identification of the opposing party’s relevant computers.
Vestige Ltd. Spoliation Letter... A good spoliation letter sent to the opposing party can set the stage for future discovery and cooperation amongst counsel. The Spoliation letter identifies the need of the parties to identify the computers that have relevant data resident thereon. This process should be done at the outset of litigation so that (a) counsel can understand the opposing party’s backup, destruction, recycling and document retention policies and cause them to be modified to avoid destroying evidence, and (b) counsel can address the issue of whether the opposing party understands that the continued operation of relevant computers may cause evidentiary data to be overwritten. It is rarely reasonable to request the opposing party stop using the relevant computers. It is, however, easy to create a forensic image of each relevant computer. We suggest, therefore, that counsel offer to create forensic images of relevant computers as part of the spoliation letter. Sending the letter, allows you to focus counsel on his/her duty to discover the relevant computers and affirmatively take action to preserve the evidence. The Spoliation letter provided by Vestige Ltd. is available for use in your current case. Please feel free to download a copy to use as necessary.
Pre-judgment Attachment or expedited discovery. In all cases, the continued use of relevant computers will irretrievably overwrite data. Additionally, in some cases, there is a need to prevent the defendant from intentionally destroying data. Vestige can provide expert testimony in support of a motion for expedited discovery or an exparte order to access, image and maintain custody of the forensic image of relevant computer hard drives pending further analysis. A forensic image is like a snapshot of absolutely everything that is on a hard drive. Creating a forensic image is not disruptive nor is it expensive, and causes no harm to the relevant computer, thus allowing the party to use the computer after the image is made without the risk of damaging the evidence.
Rule 30(B) Deposition. Regardless of the total number of computers within an organization, only those computers containing relevant data are subject to discovery and to a duty to preserve evidence. You can discover the identify of each computer used to create, modify, process, and archive information related to the litigation using a Rule 30(B) deposition. In effect, you must identify through discovery the same computers that opposing counsel has identified as requiring preservation of evidence.
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