Electronic Discovery – Chain of Custody

In previous electronic discovery articles, I discussed the Subpoena/CID, the Legal Hold, the Identification of Custodians, and the Collection.

One very important component of the collection of electronic discovery is preservation of the chain of custody. If the collection process is being handled by forensic professionals, they have very strict procedures for maintaing the chain of custody. They will have some sort of tracking database in Excel or Microsoft Access. They will have physical forms they complete, usually 3 part forms. They will have special packaging materials and special containers to transport any physical hard drives and such. The physical items are sometimes tracked using barcodes.

I usually request a copy of all of the tracking information that our forensic team creates because I end up being the person who, months later, has to try and answer questions from the attorneys about what was collected, where it was collected from, how much was collected and for which custodians.

If a professional forensic team is not part of the equation for whatever reason, then it becomes the responsibility of the litigation support professional to remind the legal team that steps need to be taken to assure the chain of custody is maintained. The process involves documenting a chronological history of the handling of electronic evidence, verifying that the data has not been altered during the copy process or the analysis process, and verifying that each person who has physical custody along the way is identified and tracked.

Unfortunately, this can sometimes be a difficult process because some attorneys do not understand the ramifications of some decisions they make about the data collection and they think we are just nit-picking their process. When this happens, I have heard some of my colleagues basically threaten the attorney by citing recent electronic discovery cases where sanctions were incurred. Don't do that. I believe there is a way to discuss the situation with the attorney without accusing them of being dumb.

If you want to create a form of your own to use with your legal teams, you can run a “google images” search for “electronic discovery chain of custody form” and you will find many example forms. At the very least, track everything in Excel.