As the legal system finds its footing in a world of digital
evidence, businesses need to establish serious records management
The issue of how to manage legal evidence discovery in the age of electronic
data will be prominently aired during the RSA
Conference April 7-12 in San Francisco.
John M. Facciola
of the United States District Court, D.C. Circuit, will be
speaking on emerging issues in electronic discovery and digital evidence and
their increasing impact on civil and criminal lawsuits.
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In a first for RSA, he will also preside
over a sample "trial" involving a dispute over computer data offered
as evidence. Facciola spoke to eWEEK on these matters and how businesses should
be preparing for potential legal proceedings in a digital age; excerpts will be
That a federal magistrate would be invited to speak at a major security
conference highlights the fact that the
legal system is only now adjusting, on the fly, to a world where evidence comes
primarily as electronic data.
While those working in the technology
industry are accustomed to rapid change, legal systems that have evolved over
hundreds of years based on a view of data as being printed on paper haven't
adjusted as readily.
A magistrate judge such as Facciola does not usually preside over a case,
but decides procedural matters in them, such as pretrial motions. These
decisions are often key in setting precedent for how evidence is collected and
how will discovery proceed. Magistrate judges, unlike "Article III" judges,
are not nominated by the president and serve for a fixed term. They are
appointed by the Judges of the Court. Facciola has been serving in the D.C.
Circuit for eight years and is in his second term.
Many attorneys are concerned about the potential for e-discovery to swamp
the system. In such an atmosphere of uncertainty, how can businesses conduct
themselves to avoid making matters worse?
Consider the fate of American Express, which lost one count of a recent case
because the court refused to admit its electronic corporate records, because, Facciola
said, "there had not been a sufficient showing as to how the information
came into existence, and ... the information provided as to how it came into
existence was, in the court's view, insufficient."
How could such a thing happen? Facciola said the problem is a lack of proper
records management. It's easy to see how businesses can be preoccupied with,
for instance, making widgets, but the failure to keep electronic records that
can be authenticated is no longer a reasonable option. The really bad news is
that software that properly assists such record keeping is a relatively new