E-Discovery, Essay Example

Global Forensics

E-discovery is a process that “require data to be “processed,” which is defined in broad terms by EU directives to include manual or automated “collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.” (Technology news: Tech law: Successfully navigating cross-border E-discovery disputes, n.d).U.S has a distinctive approach for data privacy, as it is divided in to different categories or sections. Though, U.S imposes privacy laws including Health Insurance Portability and Accountability Act (HIPAA) that is for protecting electronic medical records (EMR) and Fair Credit Reporting Act (FCRA) that is for securing credit card data of customers. Likewise, U.S approach to data privacy is not limited by the courts facilitating forensic investigators a soft hand while conducting electronic discovery procedures. Besides, there are some legal restrictions that are imposed on electronic discovery procedures but not as strict as applicable in the European Union (EU). Likewise, EU has firm limitations in all legal aspects for the investigators handling private data. In contrast to the U.S, investigators in the EU follow a broad data privacy law that is known as the EU Data Privacy Directive (EU data protection reform will put pressure on foreign companies, n.d ). Investigators and international organizations are not comfortable with these EU directives when the initial investigation starts from the US and then expands over cross borders and links to jurisdictions of EU countries. Likewise, these legal restrictions are hurdles that need to be overcome by the investigators in the U.S for the process of electronic discovery and transportation of electronic evidence.

Within the boundaries of EU countries, investigators are bound to adhere to EU Data Protection Directive that is one of the regulations that firmly addresses data protection of EU citizens on contradiction of inadequate data handling, data disclosure and transfer. Likewise, the directive contains overall 34 articles which state the method of gaining access to the data for the investigators. Moreover, if any organization or investigator not follows defined procedures and shares electronic discovery with other parties in a non-secure way, as per the EU data protection directives, penalties are imposed. However, U.S investigators can use safe harbor approach that will facilitate them to transfer electronic evidence only if they follow all the rules and many data and clauses related to data transfer along with the rules associated with investigation and handling data.

“As much of the foregoing illustrates, the U.S. e-discovery process (dictated in large part by the Federal Rules of Civil Procedure (FRCP) and the EU’s data privacy regime are squarely in conflict. This often represents a losing battle for U.S. enterprises conducting business across borders, and there are several examples of what happens when this process isn’t navigated successfully” (Technology news: Tech law: Successfully navigating cross-border E-discovery disputes , n.d). As per U.S requirements, MD5 or CRC hashing, indexing and making image of a hard drive is mandatory for electronic evidence processes. MD5 hash is also named or called as file checksum that is based on 128 bit, identical to a finger print of any file. Likewise, there is less likelihood for having two hashes of two separate or dissimilar files that are similar or identical to each other. Therefore, MD5 hashing is useful for file comparison process in accordance of integrity control.

However, the practice that is being adopted from investigators , who are serving internationally, is to only process the evidence within the countries jurisdictions, therefore, adhering to the laws associated with evidence processing without any risk of non-compliance and violation. By adhering to the laws pertaining to evidence collection and processing for a specific country falling in the boundaries of EU, investigators can  demonstrate compliance with EU directives. Moreover, after complying to the directives, investigators can appeal only for the request for transferring electronic evidence to U.S for the protection of the person. Furthermore, U.S can also use the ‘safe harbor’ approach or certification that is used for transferring the electronic evidence to the U.S legally. Likewise, the ‘safe harbor’ approach or certification is usually an agreement between two parties i.e. U.S department of commerce and the European Commission, for the transmission of electronic evidence legally (Cordis corporation safe harbor statement, n.d).

For production of data residing within the E.U, courts within the jurisdictions of the U.S will consider the general guidelines available in Restatement of § 442. U.S courts will address five factors for taking a decision for ordering production of information that is located with E.U jurisdictions. These five factors are (International Legal News: Discovery Vs. Privacy: When Laws Implementing The E.U. Directive On Data Protection Conflict With U.S. Discovery Rules, 2007):

• The significance of the investigation or legal proceedings of documents requested
• The grade of specificity of the appeal
• Is the information created or devised in the United States
• For securing the information, is there in alternative that is available
• The degree to non-compliance of the request would challenge significant interest of the region, where the information is available or originated

References

EU data protection reform will put pressure on foreign companies | PCWorld business center Retrieved 11/15/2011, 2011, from http://www.pcworld.com/businesscenter/article/243566/eu_data_protection_reform_will_put_pressure_on_foreign_companies.html

Technology news: Tech law: Successfully navigating cross-border E-discovery disputes Retrieved 11/16/2011, 2011, from http://www.technewsworld.com/story/67898.html .

Cordis corporation safe harbor statement, n.d Retrieved 11/16/2011, 2011, from http://www.cordis.com/safe-harbor

International legal news: discovery vs. Privacy: when laws implementing the e.u. directive on data protection conflict with u.s. discovery rules, 2007 Retrieved 11/16/2011, 2011, from http://www.imakenews.com/iln/e_article000718796.cfm?x=b11,0,w