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Electronic Data Discovery Quickly is Becoming Mainstream in Civil Discovery.
 Recent surveys confirm that more than 90 percent of all documents produced since 1999 were created in digital form. You don't need surveys to prove that point; just walk into any office these days and the first thing you will see is a computer!
Surprisingly, many attorneys fail to do any electronic discovery because of concerns that it is costly, time-consuming and complicated. The irony: It is usually wildly cheaper to conduct discovery electronically.
New computer forensic techniques allow the cost effective and safe recovery of evidence normally invisible to the user. What used to cost tens of thousands of dollars can now be done for less than $5,000 using trained litigation support professionals.
There is an incredible amount of electronic evidence that can be harvested, preserved, documented and authenticated.
Some firms get it. Aggressive law firms are now seeking computer-generated evidence, especially in cases related to defamation, trade secret and intellectual property theft, sexual harassment in the workplace, fraud, breach of contract, divorce proceedings and spoliation of evidence.
Even in small personal injury auto cases, defense attorneys are going after e-mail and other electronic evidence, including communication of testifying experts.
GETTING HELP
Knowing where to get help is an important part of your successful electronic discovery plan. There are a variety of services now available including electronic discovery consultants, computer forensic investigators, and litigation support services. LSSLC is familiar with E-Discovery. Please contact us at 610-642-7755 with your questions.
Depending upon the size, type of case, and experience of counsel in electronic discovery, it may be wise to consider retaining an electronic discovery consultant. He or she can help create an effective strategy for collecting, analyzing and processing the data. The scope of the consulting services normally includes assisting the attorney in preparing discovery requests related to electronic documents, reviewing and evaluating discovery responses, protecting clients from overly broad demands, and assisting in the collecting, analyzing and producing of relevant electronic data.
Electronic discovery in civil litigation has been hampered in the past by a lack of streamlined procedures to access computers in the control of opposing litigants or third parties. Unlike government investigators, who can seize computers pursuant to warrant without any advance notice, a civil litigant often gains accesses to opponent's computer systems only after weeks of protracted objections and discovery motions. With the help of a good consultant, unnecessary objections and motions can be avoided.
WHAT TO DO
Recent case law has helped define procedures that counsel should consider when computer evidence may be relevant such as sending a preservation letter, preparing an order detailing the inspection protocol, hiring a computer forensic expert to assist in acquiring and preserving computer data for examination, examining and analyzing image data files for evidence, and then documenting the findings.
(See Playboy Enterprises v. Welles, 60 F.Supp.2d 1050, 1054 (S.D. CA 1999); Simon Property Group v. mySimon, Inc. 2000 WL 963035 (S.D.); Trigon Insurance Company v. United States, 204 F.R.D. 277 (E.D. Va 2001); and Rowe Entertainment v. The William Morris Agency, 2002 WL 63190 (S.D.N.Y.)).
IN THE BEGINNING
Proper electronic discovery should always begin with the issuance of a demand letter requesting the preservation of all relevant computer evidence. At that point in time, any document retention and destruction policy in effect should be suspended and the company is on notice that any destruction of documents from that time on could turn into a spoliation of evidence case.
After an electronic discovery plan has been created, interrogatories and depositions follow to determine what types of relevant evidence might be found, what form that evidence may take, information about the computer network configuration, what software is in use, any document retention policies, data backup and storage locations, and who has control and the most knowledge about a particular computer network. From this a document production request can be carefully crafted.
If the responses indicate that relevant evidence may exist in electronic form, a computer forensic examiner can be brought in to perform the evidence harvesting. Computer forensics deals with the collection, preservation, analysis, and presentation of computer related evidence.
A forensic examiner needs to be interviewed and selected. This selection process can be time consuming. An experienced E-discovery consultant can assist in finding the right examiner with the proper background and expertise. In product liability cases, for example, you want to look for an examiner who has worked in this area of the law previously.
The requesting party normally pays the cost of the forensic examination; however, many courts will shift the cost of the forensic investigation when the producing party is shown to have deleted files in bad faith.
FRAGILE
The bottom line: Electronic discovery must be both taken seriously and done properly because the evidence is fragile, easily erased and can be compromised by untrained parties. Litigators practicing in today's digital environment must understand the various ways information can be stored and retrieved not only to ensure compliance with discovery rules, but to build the best possible case for their client. Failing to do so may not only prejudice the case, but may be malpractice.
Please contact us with your questions 610-642-7755.
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