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  • Answer Upon - Changes to the Federal Rules of Civil Procedure - Computer Forensics and E-Discovery

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    ion that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information;

    (B) a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claim

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    On December 1, 2006, many amendments to the Federal Rules of Civil Procedure went into effect. There are three rules specifically that impact Computer Forensics and E-Discovery which need to be considered when building a case for your client, as well as protecting your client's rights.

    Most companies fail to realize the following two points:

    • Any data that can be compiled into viewable form, whether presented electronically or printed on paper, is potentially within the definition of “document".

    • Electronic documents may be considered obsolete by the business in terms of its current computer infrastructure, but may have archival value and be recoverable to a readable format by specialized forensic techniques.
    FRCP - Rule 26 (LII 2007 ed.)

    With the new law regarding E-Discovery now in place, Rule 26a1 changes are very important.

    At the first sign that litigation is coming, a company must use their Litigation Hold procedures and not wait for the courts to act. The problem is most companies do not have these procedures in place, nor do these companies know that litigation holds must start this early in the process.

    Of course in order to have Litigation Hold Procedures, a company must have a retention policy and know where the company's data is stored and must be easily accessible.

    Rule 26. General Provisions Governing Discovery; Duty of Disclosure

    Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties:

    (A) the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information;

    (B) a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims

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    entially within the definition of “document".

  • Electronic documents may be considered obsolete by the business in terms of its current computer infrastructure, but may have archival value and be recoverable to a readable format by specialized forensic techniques.
  • FRCP - Rule 26 (LII 2007 ed.)

    With the new law regarding E-Discovery now in place, Rule 26a1 changes are very important.

    At the first sign that litigation is coming, a company must use their Litigation Hold procedures and not wait for the courts to act. The problem is most companies do not have these procedures in place, nor do these companies know that litigation holds must start this early in the process.

    Of course in order to have Litigation Hold Procedures, a company must have a retention policy and know where the company's data is stored and must be easily accessible.

    Rule 26. General Provisions Governing Discovery; Duty of Disclosure

    Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties:

    (A) the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information;

    (B) a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claim

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    ing, a company must use their Litigation Hold procedures and not wait for the courts to act. The problem is most companies do not have these procedures in place, nor do these companies know that litigation holds must start this early in the process.

    Of course in order to have Litigation Hold Procedures, a company must have a retention policy and know where the company's data is stored and must be easily accessible.

    Rule 26. General Provisions Governing Discovery; Duty of Disclosure

    Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties:

    (A) the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information;

    (B) a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claim

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    .

    Rule 26. General Provisions Governing Discovery; Duty of Disclosure

    Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties:

    (A) the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information;

    (B) a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claim

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    ion that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information;

    (B) a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment.

    FRCP - Rule 34 (LII 2007 ed.)

    With the new law regarding E-Discovery now in place, Rule 34 identifies new procedures regarding the production of documents and electronic data for litigation.

    Rule 34. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes

    (a) Scope.

    Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor’s behalf, to inspect, copy, test, or sample any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained — translated, if necessary, by the respondent into reasonably usable form, or to inspect, copy, test, or sample any designated tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).

    FRCP - Rule 45 (LII 2007 ed.)

    With the new law regarding E-Discovery now in place, Rule 45 identifies new procedures to follow when your company subpoenaed.

    Rule 45. Subpoena

    (d) Dutie

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