The Basics of Electronic Discovery: Part 2 of 2

In Part One of this article, we took a broad look at what e-discovery really is, defined the key terminology, and examined some of the technology impacting this field. Now, in this final Part Two, we will explore the technology in more detail, address the defensibility of the technology, and conclude with how all of this affects you, as a practitioner.

TECHNOLOGY

The technology used for e-discovery is constantly changing and improving. Well, if it is evolving at such a rate, then why do you need to obtain some technology to assist you now? Because, like your phone and computer, it has become an unavoidable component of the practice of law. New phones come out all the time, but you don’t likely change yours every three months. Similarly, new advances improve the scope and speed of e-discovery tools all the time, however, you will not need to change your technology regularly, but merely to have some reliable and proven technology upon which to rely to assist you in this regard.

The technology or software to assist you in your e-discovery practice can be hosted on your computer or reside elsewhere, such as on the server of a vendor or in the cloud. Each of these options has their own security concerns for protecting client data. Naturally, the decision of which method to utilize is one that only you can make after exploring the options with vendors. Many vendors offer multiple versions of the same technology for those who wish to self-host or those who wish to have remote access to the data.

While technology exists to aid you in sorting data collected or provided from your client and third-parties, you must also be aware that technology exists to assist your clients in preserving, maintaining, and producing ESI. To complement the software, it is not too early to begin discussing a litigation hold policy with your clients and even developing internal training strategies for their employees and contractors to avoid the inadvertent loss of important ESI.

Whatever route you take and whatever technology you ultimately choose to assist you in handling and producing ESI, you will be faced with a decision of how much control to release to the computer/software “brain”. At present, this is a hot button topic in the federal courts and has been addressed in several recent federal opinions. Software that assists us in searching voluminous data that allows the software to make decisions as to relevance has been referred to as “computer assisted research”, “computer assisted coding”, and “predictive coding”. This is in contrast to technology that utilizes a different method of searching, such as keywords, whereby the software merely identities those pre-defined keywords in documents and leaves the ultimate decision on responsiveness to the practitioner. Obviously, the first method is arguably more sophisticated programming, but its process must be reliable in order to be defended to a Court later if the issue arises, which leads us to the issue of defensibility.

DEFENSIBILITY

Although, at present, our Florida State Courts may be in somewhat uncharted waters, it is foreseeable from parallel developments in federal cases that the method by which ESI was processed may be called into question in a particular case. While one argument may be that the culling method is protected work product, it may also be appropriate for a Court to inquire into the method used in a particular case to determine, for example, whether the imposition of sanctions is appropriate or in balancing which party should bear the costs of production from the party or a third-party.

In selecting software to assist you in e-discovery or a third-party vendor to perform this task, you will want to inquire as to the methodology employed in the software and its track record to avoid a potentially costly situation later where you are called upon to defend the methodology used in production. That is not to imply that computer assisted review or predictive coding is somehow inappropriate or untested technology, but simply that you must be aware of the technology you are using no different than understanding the methodology of an expert you would employ.

SO HOW DOES ALL THIS AFFECT YOU?

This brings us to the all-important question of why should you care about any of this. E-discovery will become an integral component to civil discovery and with it the real potential for a wide range of sanctions.

In recent months there have been several highly visible cases in which Courts imposed sanctions based on e-discovery violations. Sanctions can range from the exclusion of evidence and adverse jury instructions to post-trial findings that impact a party’s appeal.

Sanctions can also be monetary and can run against a party or even, in some cases, directly against the attorney that aids in secreting a client’s electronic data. Similarly, the improper production of privileged materials in e-discovery may be considered legal malpractice. Thus, the lesson to be taken is that all attorneys now have a new obligation to counsel their clients on ESI and data management, therefore, the attorneys must understand this area of the law, as well.

This “brave new world” of e-discovery is here to stay and must be embraced and integrated into the practices of all Florida civil litigation attorneys. It is conceptually not that different from traditional discovery. Disregarding it, however, can be perilous and costly, while mastering its nuances can make you more efficient, cost effective, and provide a better service to your clients.

Basics of Digital Forensics and Evidence

The science of forensics is essentially the study of legal issues and pursuit of answers to legal questions by applying scientific knowledge using technology. There are two specific cases where legal system becomes involved are; first, is when a private party, such as a business, requires facts to support a civil action like a lawsuit. The second instance occurs when a crime is suspected or has been committed. Now, in both cases, a forensics investigator, or rather a practitioner of forensic science must check the current available resources to find facts that are supported by the available resources. And more so, the facts help answer the questions expected or asked by the legal system.

Forensics Investigations

There are differences between investigations initiated within the private business sector differ much from investigations initiated by public officials for criminal investigations. The most significant difference is the potential impact from the investigation. Private sector investigations potentially result in any or all the following events:

  • The loss/gain of money or goods
  • The loss or retention of employment
  • Potential disciplinary actions
  • Criminal charges

The most frequent cause for an investigation in the public sector is criminal activity which has the potential to incarcerate private citizens. In very few cases, a public investigation will involve the liability of public officials in issues involving public safety and these investigations can result in the loss of public taxpayer funds, or may influence new legislation. Since most public investigations involve crimes and the criminals that commit them, the term public investigation will be used synonymously with criminal investigation in the rest of the text.

The monetary costs associated with legal action are notable motivators for forensics in investigations. In public investigations, prosecution can take years and cost millions of taxpayer dollars in court costs. Suspects in the prosecution must legal defense which comes at a cost and, even if ultimately proven innocent, defendants in legal cases may suffer loss of reputation and employment. If the prosecution fails to successfully convict, the suspect entitled to restitution for losses to reputation or wages. To make matters worse, the suspect will likely have to pursue a private legal action to recoup damages which result in yet more costs.

Legal actions in the private sector are not exempt from monetary motivators. Private sector legal action can extend over several years and cost millions in private funds. Besides the potential monetary costs, private sector cases often bear a high cost in time and inconvenience for all participants.The likelihood of successful legal action whether it be private or public increases substantially as the confidence level in the facts of the investigation increase.

For example, private sector cases are often examining facts to assess if a company policy or employment contract violated. With very few exceptions, public sector investigations that involve law enforcement such as investigations that result from a crime occurring or in cases where a crime is suspected to have occurred.

Private investigations have the potential of revealing criminal activity. Though the technology and tools for gathering facts are the same or similar in private and public sector cases, the procedure to gather the two will differ much. Even though they differ, the two rules are rarely incompatible; but do need agreement with all private parties including the forensics investigators, and private sector attorneys as well as local law enforcement and public attorneys to keep up confidence levels in the facts of the investigations.

Forensics Investigators

Forensic investigators is trained to be a professionals who apply the science of forensics. They apply skills to many sciences and disciplines such as geology, physics, chemistry, toxicology and many more. Therefore, forensics can be defined as the application of diverse scientific disciplines to the answering of legal questions. The first function of a forensics investigator is to assess the legality and appropriateness of collecting evidence. The nature of investigations requires that evidence collection and analysis be performed in full compliance with the law. Both public and private investigations must respect the rights of private citizens.

Once probable cause is established, a call for is issued. With call for in hand, law enforcement is granted the right to search for only specific evidence of a crime but is allowed to collect any evidence in “plain sight” that is clear and telling that any crime has been committed.

Another function of the forensics investigator is to support an exact “chain of custody” of all evidence gathered in a case. The chain of custody is a simple record of what the evidence is who gathered it, when it was gathered, and who accessed it. An exact chain of custody is required to prevent contamination or even the appearance of contamination of the evidence. The chain of custody is equally important in both public and private investigations.

Evidence

Whether public or private, the facts of a case emerge from evidence in an investigation. Evidence is best defined as anything real or ephemeral that reveals and objectively proves the facts of an investigation. Evidence is generally used to prove the facts that a crime was committed; the suspect committed or did not commit a crime, the order of events during the commission of a crime, the motive:

The forms of the evidence can be either; blood evidence, material traced evidence, finger prints, private or personal records, public records, drug content, surveillance evidence, confession and testimony.

During an investigation, two very different roles emerge in the field of forensics. The first role is that of evidence collection. This role requires relatively limited experience, training, and qualifications. An investigator in this role will often travel to the scene of a crime or can be called to prepare evidence for the second role. The second role is that of evidence analysis. Here, evidence is reviewed, assessed, and analyzed for facts and conclusions.