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On June 17, 1988, the body of Sally Weiner, wife of bank executive Harry Weiner, was found in a field near Corry, Pa., with a gunshot wound to the back of her head. She had been held by unknown assailants while ransom demands were made. They were never met. Police were eventually led to David Copenhefer’s bookstore, where, after obtaining a search warrant, they rifled through the depths of his computer’s hard drive. Copenhefer had deleted many files from his computer, including a 22-point kidnap plan, but they were later used as evidence because he didn’t know something that most lawyers now do — in the digital world, “delete” doesn’t always mean delete. And unfortunately for Copenhefer, those files are just as admissible as anything else. In the time that Copenhefer was convicted and the use of the “deleted” electronic evidence against him was upheld in appeals, computer forensics has become a holy grail for litigators, a gift-wrapped Perry Mason moment with which to dazzle juries. Evidence lifted off of hard drives has changed the direction of virtually every kind of case, civil or criminal. Electronic discovery is becoming a fact of life. That presents opportunities and problems for lawyers, and as courts become more accustomed to electronic discovery, one thing is clear: It changes everything. Studies vary, but it’s safe to say that more than 90 percent of all information generated in the business world is electronic and a comfortable majority of that information is never translated into paper form. “The future of law, the future of discovery, is electronic. Let’s be clear about that,” said John Jessen, president and CEO of Seattle’s Electronic Data Discovery Inc., one of the pioneers in the field. And not just in the civil courts. Ross Nadel, the Assistant U.S. Attorney for the Northern District of California who heads the Computer Hacking and Intellectual Property (CHIP) Unit, said his prosecutors routinely deal with electronic evidence. And the unit has been replicated in U.S. Attorney’s Offices across the country. Processing electronic information during discovery can be extraordinarily expensive. The cost can become case-determinative — at some point, clients will settle rather than pay for a team of high-paid computer experts to search for every discoverable piece of data at a company. It’s evolving to where companies won’t have a choice of simply turning over paper copies. To do so will be to risk sanctions. “Still to this day, because of the momentum of the market, people like to look at paper,” Jessen said. “That is simply a relic and will be going away because people will not be able to defend it” as a diligent discovery process. Recently, Steve Berman of the Seattle-based plaintiffs’ firm Hagens Berman, in a case related to the collapse of Enron Corp., asked a judge to grant the plaintiffs electronic discovery — and nothing but electronic discovery. “That’s a sea change,” Jessen said. “That’s a major firm saying we don’t care about the paper copy.” The reason is there is so much more information to be gleaned from an electronic version of a document than a paper one. Old edits in word-processor files can be retrieved. Routing information on e-mails can be found. Deleted files can be unearthed. There are good reasons to get that information too. One Massachusetts judge, in Munshani v. Signal Lake Venture Fund, 00-529, learned through electronic discovery that the plaintiff fabricated a series of e-mails to support his claims. If only paper had been looked at, no one would have been able to prove they were false. The plaintiff took the Fifth Amendment when confronted with the information and the judge referred the case for criminal prosecution. To get this kind of information, attorneys need a forensic computer programmer. The field is booming — and that itself is a problem. “Everybody and their dog wants to get into electronic discovery today, and with good reason — electronic discovery is the future,” Jessen said. “The trouble is that not everybody is bringing the right skills.” Since most judges lack the technical expertise to understand the vagaries of computers, litigation comes down to a battle of the experts. And Jessen said more and more people are claiming to be experts when they have no idea what they’re doing. “We have been involved in many cases where an expert is brought in, takes a cursory examination of a hard drive and makes outrageous claims of intent,” Jessen said. The problem is that so-called experts misinterpret information. For example, some computer programs move — or “migrate” — files automatically. Without knowing that, an expert could testify that a defendant was trying to conceal something when he wasn’t. “There’s a bunch of things that can happen on a drive that may have nothing to do with the user,” Jessen said.

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