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.

Electronic Evidence Discovery May Shift To The Mobile Computer Forensic Specialist

As the computing world advances and especially as the world of the wireless computing advances, there are certainly going to be instances where the services of a mobile computer specialist will be required.

The mobile arena now includes hand-held devices with comprehensive capability, in fact there are many more wireless units than desktops.The complexities of today`s wireless units such as iPods, iPads, Smartphones and tablet computers now have the same computing power of PC`s that were manufactured within the last decade. With cutting-edge technology such as infrared and bluetooth now integrated in to mobile computers, the advances in mobile computing are rapidly surpassing those of the desktop computer.

The hand-held device now includes a wide variety of units and can include video cameras, iPods,digital recorders or any hand held units.Mobiles may differ from the desktop computer in the way that they operate. The mobile computer forensic field now shifts from hard drive recovery to electronic evidence discovery of hand held units.

The mobile operating systems and hardware standards may change more frequently as new advances are introduced. New versions may be introduced several times within the product year, whereas computer software, may be revised annually or bi-annually. There are many different platforms in the wireless computing arena which makes the job of the mobile computer forensic specialist even more challenging and additionally, there may be variations within each communication technology. There are several variations of the 802.11 which is the standard used by all wireless networks. Shorter range wireless communication involves the use of Bluetooth, while within even shorter ranges, communication is handled by the infrared light waves.

Mobile computer forensics does not only involve mobile phones and the approach is not yet standardized due to the rapid advances and multiple operating platforms. The main reason for the state of affairs is that many manufacturers are pushing different standards in hardware, interfaces, operating systems and protocols. As a result, mobile forensics cannot be treated in the same way as static computer forensics, even though the concepts, may appear to be similar. The mobile forensic specialist job may rely less on technology and more on skills, procedures and problem-solving ability and the approach can be different.

Perhaps the most important forensic component of the mobile phone would be the Subscriber Identity Module card which is used to authenticate the user and verify the services. Alternatively, this information can be embedded in the phone. Forensic information may also be available in external Secure Digital cards that can be used by most mobile devices.

The mobile forensic field is primarily concerned with the acquisition of mobile phone data and there are tools, both hardware and software. Another challenge for the mobile forensic specialist is to keep up with the avalanche of changes in the mobile computing industry. Mobile forensic software may behind the curve with regard to the new mobile technologies and you should be aware of the various tools both forensic and non forensic that can be used.

The new burgeoning field of mobile arena is sure to offer satisfying available opportunities and challenges for the mobile computer forensic specialist.