Electronic Disclosure

For the last two hundred years, apart from direct testimony, paper evidence has been the most compelling form of evidence in trying criminal and civil cases. What effect, then, will the advent of computer technology have on evidentiary instruments?

In this extensive, thought-provoking article, Chris O'Reilly and Jason Derting discuss the effect that computers and technology will have on the disclosure process. They also address the rate at which the use of paper is diminishing and how reliant we are becoming on computer-generated data.

The article reviews the various forms of evidentiary material (email, word processing documents, spreadsheets, databases and presentations) as well as how and where these items are stored (on tapes, CDs, hard drives and telephones). Statistics prove the sizeable impact technology has had on this field - 97.8% of all documents created in 2000 were electronic.

Once they had analysed electronic information, they discovered that a printout, or a printout of e-mail destroys much of what can be disclosed. Almost every legal document contains a rich history of itself, such as its original author, the creation date, hidden notes, edits, changes and other traceable information. For instance, if you analyse a document's different versions, you will know how the document evolved and you will therefore understand the events surrounding the litigation.

There are reasons why one should not accept e-mail printouts. Firstly, Blind copying (BCC's) are not displayed, except on the author's message. Secondly, there is a lack of metadata (data about the data) such as information about the original author, title, creation date, and number of revisions. As an exercise, open a Microsoft Word document in Notepad. You will see that a mass of otherwise unseen information is revealed. Open a web page, click on the drop down menu and select "View Source" - this will also show the metadata. Users do not fully understand how to access all of the data within programs - this results in an inaccurate printed version of the document.

Application/programming conflicts between applications may prevent data such as attachments, underlined text and multiple pages of E-mail, from being printed to paper. E-mail can possibly be edited and once information is committed to paper the dynamic environment, such as a hyperlink, is lost.

The article goes on to discus litigation grade data conversion, such as converting documents to TIFF (Tag Image File Format) images. The writers go on to discuss the computing environment and the management of data by way of the following sub-headings:

1. Formal data retention and sharing questions,
2. User level data retention and sharing,
3. Primary applications and
4. E-mail.

They also encourage users to gain a basic understanding of the computer environment. It is also important to realise that even though we may delete a file, it does not mean that it is deleted since earlier versions might exist on hard disk drives, backup tapes or on central servers. Interestingly, deleting a file does not result in its immediate deletion; subsequent data gradually overwrites its previously occupied disk space.

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