Is your eDiscovery vendor your weakest link when it comes to data security? Should this consideration not yet exist in your mind, start thinking fast. Many courts have ruled that chain of custody issues, as they relate to eDiscovery vendors, can and will adversely affect your lawsuit.
Sounding so deceptively simple, many chain of custody issues are actually quite challenging to legally uphold when it comes to electronic evidence. This is because, for purposes of authenticity, all potentially relevant electronic data must be accounted for from the discovery phase all the way though trial. At trial, it is crucial to physically document the chain of custody of all potentially relevant data to disprove any actual or possible tampering.
Prior to the advent of the computer, and thus electronic data, businesses simply used written chain of custody log forms to account for all potentially relevant evidence. These log forms recorded who came into contact with the evidence, usually, as a matter of fact during a criminal case, en route to trial. All chain of custody paperwork was usually handwritten and stored with other case evidence to verify its authenticity and prevent any alteration.
Modern Challenges with Chain of Custody
Nowadays it is a whole new ballgame. Electronic data has added an extra dimension of complexity to the rather simple and rudimentary chain of custody process. Tagging physical evidence is a method still employed for criminal actions; however, chain of custody issues are no longer limited to criminal cases alone. Today, chain of custody issues routinely arise in civil cases as well.
In addition to its expansion into the civil realm, modern chain of custody issues presents additional hurdles since the electronic data of two forms of evidence, tangible and intangible, now need to be preserved. Tangible objects in this regard could be a computer, hard drives, flash drive, backup tapes and intangible data can be metadata and emails. Both types of electronic evidence must be carefully tracked.
Problems with Many eDiscovery Vendors
Many eDiscovery vendors, while vital to obtaining all potentially relevant data, lack a concrete awareness of their duty to preserve the chain of custody. As a result, eDiscovery vendors are apt to break chain of custody and inadvertently disclose otherwise confidential or privileged information. Common missteps include a disregard and/or misuse of the tangible and intangible data mediums listed above.
Guaranteeing chain of custody of electronic data can be confusing and quite daunting given the coordination that must take place between vendors, IT professionals and attorneys. As a result, businesses and corporations should select an eDiscovery vendor that pays attention to chain of custody issues by having an internal plan to track and account for all electronic evidence. Locating the right vendor goes a long way towards creating defensible procedures that allow law firms and businesses peace of mind when it comes to satisfying all chain of custody issues.