How do you preserve ESI evidence cheaply?

[ESI Attorney]

I have a small case that involves evidence that a few people placed on websites, emails, and their computers. The parties don't have thousands of dollars to spend on preserving all this data in a forensically sound manner. Is there a cheap way to do data preservation to admit this evidence into court?

Emails are often at issue in family law cases. How are family law attorneys supposed to admit emails into evidence if the parties must pay the high expense of preservation by a computer forensic expert?

For example, could the parties print screenshots of emails or web pages?

Has anyone had any luck with parties stipulating to relaxed standards regarding ESI evidence so the parties can enter ESI into evidence without substantial cost?

[LarryDaniel]

I guess that depends on what you consider high costs. The presevation side (The acquisition and holding of the digital evidence.) should not be that expensive. Producing the emails shouldn't either as long as there is not a ton of data to process.

The typical family law case that I do (as a computer forensics examiner) runs around 2,500.00 total. Some less, some more, depending on the circumstances.

[NN Attorney]

ESI Attorney, I like your idea of attorneys stipulating to admit ESI evidence without a forensic expert when both parties know the evidence is valid. For example, if both parties had an email exchange, there is no reason to drive up the costs of litigation by having a forensic expert if the parties can stipulate to the email messages' authenticity.

I suppose there is a risk that a court would not allow the stipulation, but that risk probably is very small.

[David Jordan]

If attorneys start stipulating to admit uncontested ESI without a forensic expert, then forensic experts would only be needed when the authenticity of ESI is disputed. This would substantially reduce the need for forensic experts.

Still, it seems reasonable that experts should only be called when an issue is in dispute.

[LarryDaniel]

I think those are good ideas and would certainly be a better solution for family law cases. The only caveat would be that unless the original evidence, (the data) is preserved, hiring an expert might get more expensive trying to dig it out later.

If they continue to use the computers where the emails or web pages were printed from, there is a good chance of losing that evidence in the normal course of that usage.

[ESI Attorney]

Under Rule 1004 of the Federal Rules of Evidence, a photo is admissible evidence. A screenshot is essentially a photo. Thus, wouldn't a screenshot be a cheap way to admit ESI into evidence?

[David Jordan]

In many small cases, where the authenticity of the emails are not at issue, the emails are printed and produced on paper or produced as PDF documents on DVD. If the attorneys are concerned about the authenticity of the documents being challenged, they can attach them as exhibits to a Request for Admissions and request that the other side admit that they are true and accurate copies of those emails. This can be a cheap way to handle ESI in small cases where the parties simply cannot afford a computer forensic expert.

[jander]

Originally Posted by David Jordan

In many small cases, where the authenticity of the emails are not at issue, the emails are printed and produced on paper or produced as PDF documents on DVD. If the attorneys are concerned about the authenticity of the documents being challenged, they can attach them as exhibits to a Request for Admissions and request that the other side admit that they are true and accurate copies of those emails. This can be a cheap way to handle ESI in small cases where the parties simply cannot afford a computer forensic expert.

That was a helpful tip. If we try to preserve in a digital format, there will be a problem with the authenticity.