Criminal E-Discovery Laws

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What is “E-Discovery”?

E-Discovery is short for electronic discovery.  Electronic discovery is the process by which lawyers obtain electronically stored information (ESI) for use as evidence in a criminal trial.  Previously, e-discovery laws were not very common. 

However, as the use of electronic computer devices became more commonplace, more and more jurisdictions began enforcing e-discovery laws.  Creative lawyering now includes an attorney’s ability to recognize which pieces of electronically stored information might be usable in a criminal trial. 

In a criminal case, police and other law enforcement personnel can obtain electronically stored information.  They must still abide by Constitutional principles of search and seizure requirements. 

E-discovery is different from e-filing, which has to do with the filing of court documents through e-mail systems.  E-discovery is also known as ediscovery or EDD.

What are Some Examples of Electronically Stored Information?

In general, electronically stored information is “discoverable”, meaning that it can be used as evidence in a criminal case.  Criminal procedural rules provide a list of what is considered to be electronically stored information, or “ESI”.

Some examples of ESI that are commonly used in criminal trials may include:

Basically, any information that can be stored on a computer or online may be subject to the criminal discovery process.  Also, information stored on a smartphone or cell phone can also be included under e-discovery laws.  

Electronic information produced through social network websites are of special concern.  Many persons post private information on such websites, such as their whereabouts, their travels, etc.  This information can be used in a court of law and can sometimes be damaging to a defendant’s case.

Do the Police Need a Warrant to Search my E-mail?

Again, all of the search and seizure protections may be applicable depending on the circumstances surrounding the criminal investigation.  For example, police must usually obtain a valid search warrant to obtain ESI.

Recent Supreme Court cases have further emphasized the need for police to secure a warrant before seizing electronically stored information.  That is, the police must have reasonable suspicion that the ESI is somehow linked to criminal activity.  ESI that has been seized without a warrant will be excluded from evidence during trial.

Also, you should note that e-discovery laws are different in criminal cases when compared to civil claims.  For example, a person who is working in a corporation may have their e-mails seized by their employer even against their wishes.  Constitutional search and seizure protections are generally applicable to police figures in criminal cases.  They usually do not apply to private actors such as employers who are seizing company information.

Should I Contact a Lawyer if I Have Issues with E-Discovery?

E-discovery is a relatively new legal process, but it is quickly becoming commonplace in criminal cases.  If you have issues regarding the e-discovery laws in your jurisdiction, it may be worth your while to consult with a criminal defense lawyer.  A lawyer can inform you regarding the confidentiality of your electronically stored information.  Also, an attorney can represent you in court if trial becomes necessary.

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Last Modified: 09-29-2011 01:48 PM PDT

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