Search and Seizure of Digital Evidence: Thresholds and Minefields

The explosive growth and diversification of electronic documents and communications has transformed the meaning of the term document. In most, if not all, jurisdictions electronically stored information is discoverable. As a general rule relevancy is the prerequisite to production, regardless whether the medium is paper or electronically stored information. I use the term electronically stored information as opposed to electronically stored documents because there are many possible types of electronically stored information that may not necessarily constitute what we would think of as being equivalent to a normal paper document. The term electronically stored information is meant to be all encompassing.

The many unique characteristics of electronically stored information have created challenges and burdens for litigators, litigants and the courts. These characteristics include the fact there are large volumes of electronically stored information. That information is created at rates that are much greater than paper documents. Electronically stored information is hard to dispose of. In spite of any at...

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