While obtaining digital evidences, law enforcement agencies are supposed to follow sound e-discovery practices . Under the garb of investigation, law enforcement agencies cannot take away each and every digital asset of an accused. Law enforcement agencies are required to only take away that material which is directly related to the investigation in question.

However, in reality law enforcement agencies take away all possible digital information and evidence howsoever irrelevant or unrelated such digital information may be. Even organisations fail to satisfy the requirement of following sound e-discovery practices.

In a recent case, a judge has ordered the police to analyse the seized digital information from Megaupload and return back all the information that has been taken illegally. This includes all digital information that has nothing to do with the investigation in hand. Such digital information must be returned back at own cost of the investigation agency. The court has also held that clones of hard-drives already sent to the United States must also be returned if they contain personal information, while any further copies must be destroyed.

The judgement was given by chief High Court justice Helen Winkelmann who held that the seizure of devices without sorting them first was unlawful, and that the police have no right to keep irrelevant material.

Earlier, a raid requested by FBI to be carried out by the New Zealand police Special Tactics Group, was deemed illegal by the High Court as the warrants authorising it were too general.

Now the learned Judge has held that the defects in the search warrants were such that the warrants were nullities and that a miscarriage of justice did result.

This is a very sensible judgement where the learned Judge has shown good working knowledge about the technology and applicable legal principles to e-discovery. We would update about this aspect subsequently.