Computer Forensics - State Court Rules and Statutes

Districts of Arkansas Local Rule 26.1

The Fed.R.Civ.P. 26(f) report filed with the court must contain the parties' views and proposals regarding the following:

(4) Whether any party will likely be requested to disclose or produce information from electronic or computer-based media. If so:

(a) whether disclosure or production will be limited to data reasonably available to the parties in the ordinary course of business;
(b) the anticipated scope, cost and time required for disclosure or production of data beyond what is reasonably available to the parties in the ordinary course of business;
(c) the format and media agreed to by the parties for the production of such Data as well as agreed procedures for such production;
(d) whether reasonable measures have been taken to preserve potentially discoverable data from alteration or destruction in the ordinary course of business or otherwise;
(e) other problems which the parties anticipate may arise in connection with electronic or computer-based discovery.

California Code of Civil Procedure §2017

(e) (1) Pursuant to noticed motion, a court may enter orders for the use of technology in conducting discovery in cases designated as complex pursuant to Section 19 of the Judicial Administration Standards, cases ordered to be coordinated pursuant to Chapter 3 (commencing with Section 404) of Title 4 of Part 2, or exceptional cases exempt from case disposition time goals pursuant to Article 5 (commencing with Section 68600) of Chapter 2 of Title 8 of the Government Code, or cases assigned to Plan 3 pursuant to paragraph (3) of subdivision (b) of Section 2105 of the California Rules of Court. In other cases, the parties may stipulate to the entry of orders for the use of technology in conducting discovery.

(2) An order authorizing that discovery may be made only upon the express findings of the court or stipulation of the parties that the procedures adopted in the order meet all of the following criteria: (A) They promote cost-effective and efficient discovery or motions relating thereto. (B) They do not impose or require undue expenditures of time or money. (C) They do not create an undue economic burden or hardship on any person. (D) They promote open competition among vendors and providers of services in order to facilitate the highest quality service at the lowest reasonable cost to the litigants. (E) They do not require parties or counsel to purchase exceptional or unnecessary services, hardware, or software.

(3) Pursuant to these orders, discovery may be conducted and maintained in electronic media and by electronic communication. The court may enter orders prescribing procedures relating to the use of electronic technology in conducting discovery, including orders for the service of requests for discovery and responses, service and presentation of motions, production, storage, and access to information in electronic form, and the conduct of discovery in electronic media. The Judicial Council may promulgate rules, standards, and guidelines relating to electronic discovery and the use of such discovery data and documents in court proceedings.

(4) Nothing in this subdivision shall diminish the rights and duties of the parties regarding discovery, privileges, procedural rights, or substantive law.

(5) If a service provider is to be used and compensated by the parties, the court shall appoint the person or organization agreed upon by the parties and approve the contract agreed upon by the parties and the service provider. If the parties do not agree on the selection, each party shall submit to the court up to three nominees for appointment together with a contract acceptable to the nominee and the court shall appoint a service provider from among the nominees. The court may condition this appointment on the acceptance of modifications in the terms of the contract. If no nominations are received from any of the parties, the court shall appoint one or more service providers. Pursuant to noticed motion at any time and upon a showing of good cause, the court may order the removal of the service provider or vacate any agreement between the parties and the service provider, or both, effective as of the date of the order. The continued service of the service provider shall be subject to review periodically, as agreed by the parties and the service provider, or annually if they do not agree. Any disputes involving the contract or the duties, rights, and obligations of the parties or service providers may be determined on noticed motion in the action.

(6) Subject to these findings and the purpose of permitting and encouraging cost-effective and efficient discovery, "technology," as used in this section, includes, but is not limited to, telephone, e-mail, CD-ROM, Internet web sites, electronic documents, electronic document depositories, Internet depositions and storage, videoconferencing, and other electronic technology that may be used to improve communication and the discovery process.

(7) Nothing in this subdivision shall be construed to modify the requirement for use of a stenographic court reporter as provided in paragraph (1) of subdivision (l) of Section 2025. The rules, standards, and guidelines adopted pursuant to this subdivision shall be consistent with the requirement of paragraph (1) of subdivision (l) of Section 2025 that deposition testimony be taken stenographically unless the parties agree or the court orders otherwise.

(8) Nothing in this subdivision shall be construed to modify or affect in any way the process used for the selection of a stenographic court reporter.

Illinois Supreme Court Rules 201(b)(1) & 214

Manage large volumes of electronic data and quickly identify and isolate electronic evidence that is critical to the success of a litigation

201(b)(1) - Full Disclosure Required. Except as provided in these rules, a party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking disclosure or of any other party, including the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts. The word "documents," as used in these rules, includes, but is not limited to, papers, photographs, films, recordings, memoranda, books, records, accounts, communications and all retrievable information in computer storage.

214 - Any party may by written request direct any other party to produce for inspection, copying, reproduction photographing, testing or sampling specified documents, objects or tangible things, or to permit access to real estate for the purpose of making surface or subsurface inspections or surveys or photographs, or tests or taking samples, or to disclose information calculated to lead to the discovery of the whereabouts of any of these items, whenever the nature, contents, or condition of such documents, objects, tangible things, or real estate is relevant to the subject matter of the action. The request shall specify a reasonable time, which shall not be less than 28 days except by agreement or by order of court, and the place and manner of making the inspection and performing the related acts. One copy of the request shall be served on all other parties entitled to notice. A party served with the written request shall (1) produce the requested documents as they are kept in the usual course of business or organized and labeled to correspond with the categories in the request, and all retrievable information in computer storage in printed form or (2) serve upon the party so requesting written objections on the ground that the request is improper in whole or in part. If written objections to a part of the request are made, the remainder of the request shall be complied with. Any objection to the request or the refusal to respond shall be heard by the court upon prompt notice and motion of the party submitting the request. If the party claims that the item is not in his or her possession or control or that he or she does not have information calculated to lead to the discovery of its whereabouts, the party may be ordered to submit to examination in open court or by deposition regarding such claim. The party producing documents shall furnish an affidavit stating whether the production is complete in accordance with the request.

A party has a duty to seasonably supplement any prior response to the extent of documents, objects or tangible things which subsequently come into that party's possession or control or become known to that party.

This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon real estate.

Maryland Rule of Civil Procedure 2-504.3

(a) Definition - computer-generated evidence.- "Computer-generated evidence" means (1) a computer-generated aural, visual, or other sensory depiction of an event or thing and (2) a conclusion in aural, visual, or other sensory form formulated by a computer program or model. The term does not encompass photographs merely because they were taken by a camera that contains a computer; documents merely because they were generated on a word or text processor; business, personal, or other records or documents admissible under Rule 5-803 (b) merely because they were generated by computer; or summary evidence admissible under Rule 5-1006, spread sheets, or other documents merely presenting or graphically depicting data taken directly from business, public, or other records admissible under Rules 5-802.1 through 5-804.

(1) Except as provided in subsection (b) (2) of this Rule, any party who intends to use computer-generated evidence at trial for any purpose shall file a written notice within the time provided in the scheduling order or no later than 90 days before trial if there is no scheduling order that:

(A) contains a descriptive summary of the computer-generated evidence the party intends to use, including:
(i) a statement as to whether the computer-generated evidence intended to be used is in the category described in subsection (a) (1) or subsection (a) (2) of this Rule, (ii) a description of the subject matter of the computer-generated evidence, and (iii) a statement of what the computer-generated evidence purports to prove or illustrate; and (B)
(B) is accompanied by a written undertaking that the party will take all steps necessary to (i) make available any equipment or other facility needed to present the evidence in court, (ii) preserve the computer-generated evidence and furnish it to the clerk in a manner suitable for transmittal as a part of the record on appeal, and (iii) comply with any request by an appellate court for presentation of the computer-generated evidence to that court.

(2) Any party who intends to use computer-generated evidence at trial for purposes of impeachment or rebuttal shall file, as soon as practicable, the notice required by subsection (b) (1) of this Rule, except that the notice is not required if computer-generated evidence prepared by or on behalf of a party-opponent will be used by a party only for impeachment of other evidence introduced by that party-opponent. In addition, the notice is not required if computer-generated evidence prepared by or on behalf of a party-opponent will be used only as a statement by a party-opponent admissible under Rule 5-803 (a).

(c) Required disclosure; additional discovery. Within five days after service of a notice under section (b) of this Rule, the proponent shall make the computer-generated evidence available to any party. Notwithstanding any provision of the scheduling order to the contrary, the filing of a notice of intention to use computer-generated evidence entitles any other party to a reasonable period of time to discover any relevant information needed to oppose the use of the computer-generated evidence before the court holds the hearing provided for in section (e) of this Rule.

(d) Objection. Not later than 60 days after service of a notice under section (b) of this Rule, a party may file any then-available objection that the party has to the use at trial of the computer-generated evidence and shall file any objection that is based upon an assertion that the computer-generated evidence does not meet the requirements of Rule 5-901 (b) (9). An objection based on the alleged failure to meet the requirements of Rule 5-901 (b) (9) is waived if not so filed, unless the court for good cause orders otherwise.

(e) Hearing and order. If an objection is filed under section (d) of this Rule, the court shall hold a pretrial hearing on the objection. If the hearing is an evidentiary hearing, the court may appoint an expert to assist the court in ruling on the objection and may assess against one or more parties the reasonable fees and expenses of the expert. In ruling on the objection, the court may require modification of the computer-generated evidence and may impose conditions relating to its use at trial. The court's ruling on the objection shall control the subsequent course of the action. If the court rules that the computer-generated evidence may be used at trial, when it is used, (1) any party may, but need not, present any admissible evidence that was presented at the hearing on the objection, and (2) the party objecting to the evidence is not required to re-state an objection made in writing or at the hearing in order to preserve that objection for appeal. If the court excludes or restricts the use of computer-generated evidence, the proponent need not make a subsequent offer of proof in order to preserve that ruling for appeal.

(f) Preservation of computer-generated evidence. The party offering computer-generated evidence at any proceeding shall preserve the computer-generated evidence, furnish it to the clerk in a manner suitable for transmittal as a part of the record on appeal, and present the computer-generated evidence to an appellate court if the court so requests.

District of Florida Local Court Rule 3.03(f)

Litigants' counsel should utilize computer technology to the maximum extent possible in all phases of litigation i.e., to serve interrogatories on opposing counsel with a copy of the questions on computer disk in addition to the required printed copy.

Supreme Court of Mississippi Rule 26(b)(5)

Rule 26(b)(5) Electronic Data. To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. The responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business. If the responding party cannot-through reasonable efforts-retrieve the data or information requested or produce it in the form requested, the responding party must state an objection complying with these rules. If the court orders the responding party to comply with the request, the court may also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information.

District of New Jersey Local Civil Rule 26.1(d)

(1) Duty to Investigate and Disclose. Prior to a Fed. R. Civ. P. 26(f) conference, counsel shall review with the client the client’s information management systems including computer-based and other digital systems, in order to understand how information is stored and how it can be retrieved. To determine what must be disclosed pursuant to Fed. R. Civ. P. 26(a) (1), counsel shall further review with the client the client’s information files, including currently maintained computer files as well as historical, archival, back-up, and legacy computer files, whether in current or historic media or formats, such as digital evidence which may be used to support claims or defenses. Counsel shall also identify a person or persons with knowledge about the client’s information management systems, including computer-based and other digital systems, with the ability to facilitate, through counsel, reasonably anticipated discovery.

(2) Duty to Notify. A party seeking discovery of computer-based or other digital information shall notify the opposing party as soon as possible, but no late r than the Fed. R. Civ. P. 26(f) conference, and identify as clearly as possible the categories of information which may be sought. A party may supplement its request for computer-based and other digital information as soon as possible upon receipt of new information relating to digital evidence.

(3) Duty to Meet and Confer. During the Fed. R. Civ. P. 26(f) conference, the parties shall confer and attempt to agree o n computer-based and other digital discovery matters, including the following: (a) Preservation and production of digital information; procedures to deal with inadvertent production of privileged information; whether restoration of deleted digital information may be necessary; whether back up or historic legacy data is within the scope of discovery; and the media, format, and procedures for producing digital information; (b) Who will bear the costs of preservation, production, and restoration (if necessary) of any digital discovery.

Texas Rule of Civil Procedure 196.4

To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. The responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business. If the responding party cannot--through reasonable efforts--retrieve the data or information requested or produce it in the form requested, the responding party must state an objection complying with these rules. If the court orders the responding party to comply with the request, the court must also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information.

District of Wyoming Local Civil Rule 26.1(d)

(3) Prior to a Fed.R.Civ.P. 26(f) conference, counsel should carefully investigate their client's information management system so that they are knowledgeable as to its operation, including how information is stored and how it can be retrieved. Likewise, counsel shall reasonably review the client's computer files to ascertain the contents thereof, including archival and legacy data (outdated formats or media), and disclose in initial discovery (self-executing routine discovery) the computer based evidence which may be used to support claims or defenses.

(A) Duty to Notify. A party seeking discovery of computer-based information shall notify the opposing party immediately, but no later than the Fed.R.Civ.P. 26(f) conference of that fact and identify as clearly as possible the categories of information which may be sought.

(B) Duty to Meet and Confer. The parties shall meet and confer regarding the following matters during the Fed.R.Civ.P.26(f) conference:

(i) Computer-based information (in general). Counsel shall attempt to agree on steps the parties will take to segregate and preserve computer-based information in order to avoid accusations of spoliation;
(ii) E-mail information. Counsel shall attempt to agree as to the scope of e-mail discovery and attempt to agree upon an e-mail search protocol. This should include an agreement regarding inadvertent production of privileged e-mail messages.
(iii) Deleted information. Counsel shall confer and attempt to agree whether or not restoration of deleted information may be necessary, the extent to which restoration of deleted information is needed, and who will bear the costs of restoration; and

Back-up data. Counsel shall attempt to agree whether or not back-up data may be necessary, the extent to which back-up data is needed and who will bear the cost of obtaining back-up data.