E-Discovery Holds Strategies for Criminal Defense

Warren Kruse (@warren_kruse) tweeted a link to an article which should be of particular interest to criminal defense attorneys. The Law.com / New York Law Journal article is subtitled, "Clarifying the government's obligations for the preservation and production of ESI," and it comments on the recent decisions in United States v. Suarez.  Below is an excerpt from the article that might draw your attention:

Although only the Suarez jury will know the impact of the adverse inference instruction, the October 2010 acquittal of Suarez of all the charges, and his co-defendant of some, may indicate that it was quite significant. Notably, Suarez was the first acquittal on federal corruption charges in New Jersey in over a decade. Suarez may signal that civil retention and preservation obligations apply in the criminal context.

Click here to read full article.

Digital Detectives Podcast - Subscribe Now!

I cannot express enough how pleased I am with the Digital Detectives Podcast, hosted by John and Sharon of Sensei Enterprises. Listening as a digital forensics professional, I find myself thinking about the insight my clients could gain by listening. The show surfs the barrel of the proverbial e-Discovery wave, speaking with many of the most well-known experts about real and current issues involving electronic discovery and computer forensics. Whether an attorney, e-Discovery or forensics professional, or CEO/CTO/CIO of a corporation, this is a great investment of your time. The knowledge gained from these discussions can help you or your clients save time and money.

Since the majority of our readership is law firms, I want to present two episodes I found to be particularly relevant to you:

The Deplorable State of Law Firm Security

Current Issues in Computer Forensics

Virginia Law Signed Exempting Computer Forensics from Private Investigator Licensing

Bravo! to Sharon Nelson and company for getting this bill off the ground. This is HUGE for the forensics community, as several states have been requiring computer forensics professionals to obtain (an often impossible) Private Investigator's license to operate.

Summary of the bill as introduced: "Computer and digital forensic services; exempt from regulation as a private security service business. Exempts from regulation as a private security service business any individual engaged in (i) computer or digital forensic services or in the acquisition, review, or analysis of digital or computer-based information, whether for purposes of obtaining or furnishing information for evidentiary or other purposes or for providing expert testimony before a court, or (ii) network or system vulnerability testing, including network scans and risk assessment and analysis of computers connected to a network."

Integrating Forensic Investigation Methodology into eDiscovery

I just came across a fantastic paper by Colin Chisholm and Jeff Groman, submitted as a GIAC Gold Certification paper to the SANS Institute in January 2010. As the title, Integrating Forensic Investigation Methodology into eDiscovery, would suggest, it lays out the implementation of forensic methodology to the eDiscovery process (limited to the Collection & Preservation phases of the EDRM). This paper is a great read for the three camps: Forensicators operating in the eDiscovery space, members of the legal community, and eDiscovery professionals who would benefit from some more insight into the mentality of traditional forensic investigators. It is extremely helpful for members of each group to understand the terminology, methodology, and (most importantly) the basis of thought of each of the other counterparts. This paper does a stellar job at bridging that gap.