New Federal Rules and Digital Evidence

Gavin W. Manes
Elizabeth Downing
Lance Watson
Oklahoma Digital Forensics Professionals, Inc.
Tulsa, OK USA
gavin@okdfp.com
beth@okdfp.com
lance@okdfp.com

Christopher Thrutchley
Newton, O'Connor, Turner & Ketchum
Tulsa, OK USA
chris@newtonoconnor.com

ABSTRACT

The newly revised Federal Rules of Civil Procedure and developments under the Federal Rules of Evidence have a significant impact on the use, collection, and treatment of digital evidence for legal proceedings. The Rules now formally grant electronic documents and digital evidence the same status as paper and other forms of tangible evidence.  As a result, the availability and proper preservation of potentially relevant electronic evidence must be considered, at the very latest, in the preliminary stages of litigation and, at the earliest, as soon as litigation is reasonably anticipated.  It is important for professionals to be familiar with the specific rules and developing laws pertaining to the preservation and production of digital evidence prior to an incident or the initial stages of litigation and discovery.

Keywords: digital forensics, electronic discovery, evidence production, privilege, civil procedure