INFORMATION SECURITY LAW

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INFORMATION SECURITY LAW
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Importance of Electronic Evidence

• Electronic documents can be recovered more
  difficult to destroy than paper documents
• Electronic documents often contain critical
  pieces of information (e.g., time, date, author)
• Backups can be used to prove that critical
  documents have been altered

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Types of Electronic Evidence

• Data files
• Active data, replicant data, backup data,
  residual data
• Electronic mail
• Other information
• Audit trails, computer logs, access control lists

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ELECTRONIC EVIDENCE AND CIVIL LAWSUITS

• Stages in Civil Lawsuit
• Discovery and Use at Trial of Electronic Evidence

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Stages in Civil Lawsuit

• Pleading Stage
• Pretrial Stage
• Trial Stage
• Post-Trial Stage

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Stages in Civil Lawsuit

• Pleading Stage
• Plaintiff Summons and Complaint
• Defendant Answer, Counterclaim, Crossclaim

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Stages in Civil Lawsuit

• Pretrial Stage
• Discovery
• Summary Judgment
• Pretrial Conference

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Stages in Civil Lawsuit

• Liberal Discovery
• Information relevant to lawsuit or that may
  lead to relevant information
• Exceptions privileged information, work product
  

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Stages in Civil Lawsuit

• Discovery Methods
• Interrogatories
• Depositions
• Production of Documents

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Discovery of Electronic Evidence

• Rule 34 definition of documents includes
• Data compilations from which information can be
  obtained
• Rule 34 scope of discovery includes
• copy, test or sample any tangible thing

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Discovery of Electronic Evidence

• Computer stored information is discoverable under
  the same rules that pertain to tangible, written
  materials
• Rowe Entertainment v. William Morris Agency
  (2002)
• Defendants hard drive was discoverable since it
  was likely that relevant information stored on it
• Playboy Enterprises v. Welles (1999)

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Discovery of Electronic Evidence

• Court may limit discovery to protect against
  requests that are unduly burdensome or expensive
• Demelash v. Ross Stores (2001)
• Request for disks and tapes containing all files
  created, modified or accessed by five employees
  over a two and half year period was overbroad and
  unduly burdensome
• Wright v. AmSouth Bancorp

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Discovery of Electronic Evidence

• Court may shift some or all of the costs of
  obtaining electronic evidence to requesting party
  
• Rowe v. William Morris Agency (2002)
• Archived e-mails were only discoverable if
  requesting party paid part of the costs, given
  the lack of any showing that relevant information
  would be disocvered in the e-mails
• Byers v. Illinois State Police (2002)

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Discovery of Electronic Evidence

• Sanctions may be imposed if party fails or
  refuses to comply with a discovery request for
  electronic evidence
• Crown Life Ins. V. Craig (1993)
• Court ordered plaintiff to pay 10,000 to
  defendant for its failure to preserve e-mail
  records for five employees, defendant also
  allowed to do keyword search of plaintiffs
  databases
• Proctor Gamble v. Haugen (1998)

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Trial Stage

• Rules of evidence
• Relevance of electronic evidence
• Authentication of documents

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Relevance of electronic evidence

• Evidence of offensive e-mails relevant in gender
  discrimination suit based on hostile work
  environment
• Strauss v. Microsoft (1995)
• Intra-company e-mails provided direct evidence
  that corporation was actively trying to destroy a
  competitor
• Caldera v. Microsoft (1999)
• E-mails of senior bank officials admissable to
  show that transactions were off-the-books loans
• J.P. Morgan Chase Bank v. Liberty Mutual (2002)