Ediscovery Trends

Ralph Losey has a quick video rundown of his three keys to successful ediscovery.  Law firms need to start using technology to their advantage and work with their technology department, rather than fear new digital trends.  Cooperation from all parties involved in any litigation is also essential.  I also like the role of a modern Sherlock Holmes being cast as a computer forensics expert!  It’s a short video, and I recommend watching.

As courts are beginning to better understand the many issues surrounding ediscovery and electronically stored information, parties are more often being required to meet to discuss these issues.  In fact, a court in Michigan decided to dismiss a plaintiff’s case recently due to the plaintiff deleting emails after receiving a notification to preserve emails from the defendants.

Not only is this an ediscovery issue, but it’s also a computer forensics issue.  When an individual or company knows they will be a party in litigation, there is a duty to forensically preserve any documents like email immediately.  When there is delay, especially when dealing with an individual, other things often happen – people get new computers and throw out their hard drives, or a virus could force them to reformat in order to have a working computer.  The creation of a forensically sound image is of paramount importance if you wish to get through litigation without being sanctioned.

In email forensics, it’s important to realize the scope of the data that you are dealing with.  While I agree with some of this blog post on email collection, when important litigation is involved, a computer forensic expert is a must.

The main reason you do not want your internal IT admin exporting emails for you is that often the person who recovered the data will be called upon to testify before the court.  A certified computer forensics professional has the experience and proper methodology to refute claims (such as spoliation, for example) made by opposing counsel.  A reputable ediscovery or digital forensics shop should have certifications and the expertise to help plan the most efficient way to collect, cull, and review your documents.  Proper planning for litigation can ensure that you’re using resources wisely and not throwing good money after bad.

However, if your firm uses Exchange and is simply conducting some sort of internal investigation, then the DIY approach to data collection is probably just fine.  Make sure to know the limits of your IT staff though – data collection can be a long process and they may not have the resources to do the job as quickly as a dedicated forensics firm.

Here’s a short audio interview with Rob Fitzgerald of the Lorenzi Group.  He discusses the growing role of digital forensics in litigation.  E-discovery firms and forensic firms are consolidating services in order to better serve legal markets.  Many corporate clients are becoming more proactive with their use of internal document management software, reflecting their need to quickly and efficiently respond to litigation, investigation, and compliance requests.  This interview is a good quick overview of some current trends in forensics and e-discovery technology.