There are many vendors and service providers with successfully convinced / scared in-house attorneys coping with eDiscovery that “Forensic Collection” is usually recommended for ALL civil litigation. However, the Federal Rules of Civil Procedure, case law and also the foremost experts in this particular field disagree.

The argument that inside a normal civil litigation case, absent a showing of “good cause”, an entity doesn’t have to provide deleted and slack space data (ie. Information gained from your “forensic” collection) begins in FRCP 26(a)(2)(B).

A party does not need to provide discovery of electronically stored information from sources how the party identifies as no reasonably accessible as a result of undue burden or cost. On motion to compel discovery or even for a protective order, the party from whom discovery is sought must show the information will not be reasonably accessible because of undue burden or cost. If that showing is done, that court may nonetheless order discovery from such sources in the event the requesting party shows good cause.

The Standing Committee report notes to Rule 26(b)(2) give samples of not reasonably accessible data. The notes put “data which was ‘deleted’ but remains in fragmented form requiring today’s version of forensics to bring back and retrieve” inside same category as disaster recovery backup tapes and legacy data from obsolete systems. The notes state “parties sophisticated in electronic discovery first look within the reasonably accessible locations that are likely to produce responsive information” and “in many cases, discovery from accessible sources will probably be sufficient to satisfy the needs of true.”