"On Friday [12/1/2006], the long-discussed and much-awaited amendments to the Federal Rules of Civil Procedure (FRCP) went into effect. Among the elements of these amendments are changes to how electronic evidence is treated in discovery.
"This issue and the changes to the rules affect most particularly counsel advising clients in e-discovery matters, but e-discovery and the treatment of information and communications — before discovery is developed or considered, or before lawsuits are filed — are issues critical to e-commerce, and that will become more important as this segment of the economy grows, for businesses and for law firms.
"This article describes how nontraditional sources of electronic data may provide important evidence in investigations. These data sources, including instant messaging (IM), voicemail, Web-based e-mail and sales-management systems, present distinct challenges in terms of procuring and analyzing raw data.
"According to the FRCP amendments, electronically stored information (ESI) has been added to the official list of items subject to production. Typical ESI sources include forensic copies of personal computers, company file servers, e-mail servers and backup tapes. In our experience, alternative sources of ESI (whether from external data sources or from a more detailed review of forensic hard-drive images) can take many forms and can produce additional evidence. Examples of nontypical ESI, which we will examine in further detail, include: Web-based e-mail, IM, voicemail, internal database systems, iPods and other portable storage devices."