Digital Evidence Discovery: Making Sure What You Request and What You Receive Are Identical
Currently, there are no comprehensive electronic discovery rules separate and apart from general discovery requirements in criminal defense cases. Some legal scholars suggest the existing civil rules in many jurisdictions as they relate to e‐discovery as appropriate models to follow in criminal defense cases, but these civil rules are also not uniformly adopted. Accordingly, discovery rules in both civil and criminal matters need to be updated and/or rewritten to reflect the prevalence of ordinary digital evidence in the majority of criminal defense cases. In jurisdictions where discovery production is not an issue, the large amounts of digital evidence data that gets dumped on the defense often becomes overwhelming. Not only can the digital evidence correspond to thousands of documents with correlating metadata, making the data set extremely large, it can also be in multiple formats, requiring the criminal defense team to have the resources and expertise to access the data. For additional information see IRIS LLC Digital Evidence Case Assessment Method and IRIS LLC Cellebrite Report Quick Start Guide
For digital evidence discovery purposes, the defense must know to request and receive a copy of the native forensic evidence file. Printouts or PDFs of the relevant material should not be accepted and are generally incomplete. Native files will allow access to metadata. This information is not available if you simply accept printed or edited files. Consider due process or Brady arguments for cases in which native files might provide exculpatory evidence or information.
More Information Digital Evidence Innocence Initiative White Paper