The explosion of digital data has transformed how we live, work, and communicate. From emails and social media to cloud storage and IoT devices, our personal and professional lives have become increasingly intertwined with technology and online communication.
While this digital revolution has made processes faster and our lives easier, it has also made legal and investigative matters incredibly complex. Today, every text, phone call, photo, and online interaction leaves a digital trace, and the sheer volume and variety of digital evidence can be overwhelming for law enforcement and legal teams.
Digital information can also be easily altered, deleted, or lost, adding an extra layer of complexity to the already challenging process of gathering digital evidence that is legally defensible.
To help with this process, legal terms often turn to both e-discovery and digital forensics services to help them recover, analyse, and present digital evidence in a legally defensible manner and ensure justice.
However, while e-Discovery and digital forensics may serve similar purposes, their functions and methods are entirely different.
This article delves into some key differences between e-Discovery Vs Digital Forensics, comparing how both techniques are used in legal and investigative contexts.
What is e-Discovery?
E-discovery is the process of identifying, collecting, preserving, reviewing, analysing, and producing electronically stored information (ESI) in response to a legal discovery request. It’s the digital equivalent of the traditional paper-based discovery process, but due to the vast amounts of data involved, it has a much broader scope and complexity.
E-Discovery addresses many of the challenges that come with dealing with digital evidence by pinpointing potential sources of relevant data and ensuring it is collected and stored in a way that maintains its integrity and admissibility as evidence.
When faced with vast amounts of data, such as emails, documents, spreadsheets, databases, and more, e-Discovery provides the tools and methodologies to identify relevant data sources, collect data efficiently, preserve and process it effectively, review data thoroughly, and produce data that’s clear and admissible in court.
How does e-Discovery work?
1. Identification and Preservation
The first step of e-Discovery is identifying relevant data sources by determining where potentially relevant information might reside, such as emails, databases, documents, and social media platforms. Once identified, data must be preserved to prevent alteration or deletion, which often involves placing a “legal hold” on relevant digital evidence.
2. Collection and Processing
During the collection process of discovery, data is gathered from various sources and formats. The collected data is then organised, indexed, and made searchable, which often involves converting data into a reviewable format and removing duplicates or irrelevant information.
This process relies heavily on technology. Software tools, such as case management platforms, document review software, and predictive coding, are crucial to helping manage the vast amounts of data involved so it can be collected and processed correctly.
3. Review and Analysis
Once data is ready for analysis, attorneys and legal teams examine the processed data to identify relevant information. Relevant information is analysed to identify patterns, trends, and potential evidence. This process often involves using data visualisation tools and statistical analysis to make it easier for legal teams to identify admissible evidence within the data.
4. Presentation
Once legal teams have identified any information relevant to a case, they must then prepare it for production to opposing counsel or the court. This involves creating document productions, redacting privileged information, and formatting the data in a usable format. The produced documents are then used in depositions, motions, and ultimately at trial. It’s important to note that e-Discovery is an iterative process. New information may be discovered, and the process may need to be adjusted accordingly. The specific steps and tools used can also vary depending on the complexity of the case and the available resources.
Key techniques for e-Discovery
eDiscovery involves a combination of technological and legal strategies to manage and analyse electronic data. Some of the fundamental techniques include:
Data Identification and Preservation
- Early Case Assessment (ECA): Quickly identifying relevant data to reduce the overall volume for review.
- Data Mapping: Creating a comprehensive inventory of data sources and locations.
- Legal Hold: Issuing a formal notice to preserve relevant data.
Data Collection and Processing
- Data Collection: Gathering data from various sources like emails, databases, and cloud platforms.
- Data Processing: Organizing, cleaning, and converting data into a reviewable format.
- Deduplication: Removing duplicate copies of data to reduce volume.
Data Review and Analysis
- Keyword Search: Identifying relevant documents based on specific terms.
- Concept Searching: Identifying documents based on themes or concepts.
- Predictive Coding: Using machine learning to train a system to identify relevant documents.
- Technology Assisted Review (TAR): Combining human review with technology to improve efficiency.
- Early Case Assessment (ECA): (mentioned earlier) to prioritise documents for review.
Data Production and Presentation
- Data Production: Preparing and delivering relevant documents to opposing counsel.
- Redaction: Removing privileged or sensitive information from documents.
- Load Files: Creating standardised formats for document production.
What is digital forensics?
Digital forensics is a branch of forensic science that collects, analyses, and presents hidden digital evidence found on electronic devices. This evidence can be used in criminal investigations, civil lawsuits, and even internal corporate investigations.
When a crime is committed, digital forensics experts examine computers, smartphones, servers, and other electronic devices to uncover evidence to help solve the case. This evidence can be anything from deleted emails and browsing history to encrypted files and hidden data. The goal is to reconstruct the events that took place by analysing the digital footprints left behind.
Once they gain access to this data, they can use specialised tools to extract evidence that might be helpful in an investigation. This could include recovering deleted files, examining browsing history, or even delving into hidden messages stored on a device. With this evidence, they can present their analysis in a way that’s clear and admissible in court, if necessary.
How does digital forensics work?
1. Acquisition
The first step in digital forensics is acquiring the evidence. Digital evidence is collected from various sources, such as computers, smartphones, servers, and cloud storage. Digital forensics teams must ensure that evidence remains unaltered from the moment it’s seized until it’s presented in court, such as by creating exact image copies of devices.
2. Identification and Analysis
Once devices have been identified, investigative teams extract the data from the collected devices. This data can include deleted files, internet history, emails, and more. The extracted data is then carefully analysed to identify patterns, inconsistencies, and potential evidence. Forensic experts can then interpret the findings, giving them context within the investigation.
3. Documentation and Reporting
Throughout the digital forensics process, a detailed record of every person who handled the evidence ensures its integrity. Digital forensics experts also create a comprehensive report of the investigation, outlining each process, finding, and conclusion. This report is often used in court and is crucial to ensuring that gathered evidence is viable.
Key techniques used in digital forensics
Data Acquisition Techniques
- Disk Imaging: Creating an exact bit-by-bit copy of a storage device to preserve its original state.
- Memory Dumping: Capturing the contents of a computer’s RAM to analyse volatile data.
- Data Extraction: Recovering data from various storage devices, including hard drives, SSDs, mobile devices, and cloud storage.
Data Analysis Techniques
- File Carving: Recovering deleted files from unallocated disk space.
- Steganalysis: Detecting hidden information embedded within digital media.
- Network Traffic Analysis: Examining network packets to identify suspicious activity or data transfer.
- Mobile Device Forensics: Extracting data from smartphones and tablets, including call logs, text messages, and app data.
- Cloud Forensics: Investigating data stored in cloud-based services.
E-Discovery vs digital forensics: what’s the difference?
Both e-Discovery and digital forensics involve handling electronic data, but Digital forensics takes the investigation a step further.
While e-Discovery is about finding and producing relevant digital information for legal proceedings, digital forensics delves deeper by uncovering evidence that’s been hidden or deleted from a device so it can be used for investigation and prosecution.
Digital forensics relies on specialized forensic software and hardware tools to extract, analyse, and interpret data. The process is typically more technical than e-discovery and requires in-depth knowledge of file systems, operating systems, and network protocols.
In essence, e-Discovery is essentially a subset of digital forensics. Digital forensics can be used to uncover data that might be relevant to an e-Discovery process, but e-Discovery doesn’t necessarily involve the depth of analysis and reconstruction that digital forensics does.
Key Differences
1. Data Scope and Preservation
e-Discovery primarily focuses on accessible data, such as emails, documents, and databases, often involving legal holds and standard data backup procedures.
Digital Forensics, however, examines both accessible and hidden or deleted data, requiring meticulous forensic imaging and chain-of-custody protocols to maintain evidentiary integrity.
2. Methodology and Tools
e-Discovery employs a combination of technology and human review. This technology includes data processing software, search platforms, and predictive coding, and the process is often iterative and involves collaboration between legal and technical teams.
Digital Forensics, on the other hand, relies on specialised forensic software and hardware tools to extract, analyse, and interpret data. The process is typically more technical and requires in-depth knowledge of file systems, operating systems, and network protocols.
3. Focus and Objectives
e-Discovery aims to efficiently identify, collect, and produce relevant information for legal proceedings to support litigation or discovery efforts.
Digital Forensics, however, focuses on uncovering hidden or deleted evidence, reconstructing events, and providing proof for criminal or civil cases. The objective is to establish facts and support legal investigations.
4. Regulatory requirements
e-Discovery adheres to legal frameworks like the Federal Rules of Civil Procedure and local electronic discovery rules.
Digital Forensics complies with strict evidentiary standards, including chain of custody, authentication, and admissibility requirements.
E-Discover vs digital forensics: Which should you choose?
When choosing either e-Discovery vs digital forensics for an investigation, the best option depends on the case at hand. In many cases, e-Discovery and digital forensics can be complementary. For example, e-Discovery can be used to identify and collect relevant data, while digital forensics can be used to investigate suspicious activity or recover deleted information.
At SIP International, we offer e-discovery and in-depth digital forensics services led by forensics and intelligence experts with decades of experience.
SIP forensic investigative specialists analyse the data to identify any wrongdoing or other activity applicable to the objective sought and then compile a comprehensive report to be presented as evidence in civil or criminal proceedings. Regardless of the method used for data collection, SIP ensures that the data’s integrity is maintained. Our specialists follow strict compliant protocols to ensure the data remains protected, transferring the data from the source through imaging to ensure no changes have been made to the original files.
Get in touch with one of our experts to find out more.
