6. The Discovery Process

"Discovery" is the process by which each side in a lawsuit demands and produces the evidence that it has.  There are two principle ways in which this happens.  First, there are 'interrogatories.'  Interrogatories are lists of questions that must be answered under oath.  In these cases, for example, the first set of questions to the defendant will be 1. Do you admit you downloaded this file, 2. Do you know anyone who admits that they downloaded this file, and 3. Who else lives with you and/or shares you internet connection.

Second, there are depositions.  It sounds scary, but a deposition is just another name for an interview, on the record, by the opposing side.  A meeting would be scheduled in a conference room somewhere, and whichever person is being deposed would show up, along with his/her attorney, and the attorneys for the other side.  For a few hours, the attorney would ask questions of the witness

Do Not Delete Or Overwrite Your Hard Drive

A third, and less common way that evidence is turned over, is by one side requesting that the court order the other side to produce it in one way or another.  In these cases, the most obvious example is that, assuming the defendant denies the charges, the plaintiffs probably won't have enough evidence to prove their case, and would therefore probably like to examine the defendant's computer.  There are ways of limiting that access, but you probably cannot avoid turning over the hard drive to someone else for a while. To be clear, we are not talking about the FBI kicking in your door and seizing your computer; we are talking about the plaintiffs asking the court to order that you make your electronic devices available to their expert for inspection at your convenience

IF YOU KNOWINGLY DESTROY EVIDENCE OR NEGLIGENTLY ALLOW IT TO BE DESTROYED, THAT FACT CAN BE USED AGAINST YOU, if it happened after you were on notice of the possibility that the files were evidence in a lawsuit. Basically, the court can infer from the fact that you destroyed evidence that if it had not been destroyed, it would have been bad for your side of the case. It can't penalize you for evidence lost in the time between the alleged violation and the day you were notified that the computer is the subject of litigation (which is usually a very substantial amount of time), but if the files are destroyed after you are notified, it can.

The best insurance against this is to get a duplicate of every hard drive (internal or external) for every computer or gaming system in your house. You can then put the duplicate back in the computer, put the original hard drive in the closet, and forget about it unless and until you ever need it. You can get a true forensic duplication of your hard drive for about $1,200 from TechFusion or, for $65 plus the cost of second hard drive itself (usually between $50 to $150), you can get a non-forensic duplicate made by a certified technician at Micro Center (I am not affiliated with either of these companies, I only link them to give you an idea of what is out there -- other local computer repair/service companies can duplicate hard drives as well). In any case, if you decide to do this, make sure that whoever does the duplication is certified (A+ or better is preferable), and when you get the receipt/report, make sure it identifies the technician who did the actual duplication.

If you do decide to have your hard drive duplicated, save the receipt.


5. Defending the Case 7. Even Losing Might Be Cheaper