Think You Don't Need to be Educated About eDiscovery - You're Sadly Mistaken

by JulieLaboe

This week I attended an online CLE provided by iVize and CT Summation.  The presenter was Josh Gilliland of iVize.  I really liked the message he was providing – (in my words) even the smallest and basic cases are now affected by eDiscovery and anyone who doesn’t think that they need to be educated about eDiscovery before engaging in litigation is sadly mistaken.

What if I decide e-Discovery is not important?

Attorney Gilliland brought up a situation where an attorney had approached him and stated that he did not want to deal with eDiscovery.  Basically, this lawyer wanted to dismiss electronically stored information (“ESI”) without consulting his client on what existed, email archiving polices, litigation hold, nor was he interested in collecting/reviewing ESI.  I empathize with attorney Gilliland’s frustration when it comes to this type of cavalier attitude towards a very serious topic.  As with all other technology in the litigation arena, the large cases dictate the rules relating to the use of ESI which, in turn, trickle down to all types of cases.  In the eDiscovery arena, most have heard about the Qualcomm v. Broadcom case.  In that case the court commented that “[a]ttorneys' ethical obligations do not permit them to participate in an inadequate document search and then provide misleading and incomplete information to their opponents and false arguments to the court.”  Given this proclamation, no one can afford to remain in a reactionary mode.  Now is the time to be proactive and start playing offense.  Let’s also educate ourselves about Business Intelligence and Data Loss Recovery. 

What if I’m not educated about eDiscovery?

In the recent 2008 case of Perfect Barrier LLC v. Woodsmart Solutions Inc. , the Plaintiff claimed they wanted emails as TIFFs because it was “more convenient”.  The court stated that “[c]onvenience is not a basis for requiring electronic discovery to be produced in a different format than normally maintained.”  The reality is that TIFFs are not more convenient.  Bottom line, attorneys need to get educated – get educated or surround yourself with those who are educated.  You can’t make an informed decision about this important topic until you understand the basics – especially searching email.

Okay, so here’s one scenario attorney Gilliland provided, in the Whitlow v. Martin case, the plaintiff supplied search terms to the defense counsel and therefore the information produced was found by the plaintiff’s search terms.  Later, the plaintiff claimed incomplete production because, "[t]he only search was one using the terms Plaintiffs supplied."  Plaintiffs failed to explain how a search with search terms provided by Plaintiffs' counsel was insufficient.  On the flip side, in the 2008 case Spieker v. Cherokee,Plaintiffs initially served defendant with a series of specifically defined document requests (not search terms).  The court found that the burden of producing documents responsive to those requests remained with the defendant.  Since the documents were created, stored, and/or maintained by the defendant, the defendant was in the better position to develop the most appropriate list of search terms capable of producing the requested documents.  Defendant cannot escape its burden of production by arguing that plaintiffs' suggested search terms are "not specific enough."  If the search terms need to be more specific to answer plaintiffs' production requests, defendant should modify the terms accordingly. The court rejected defendant's argument that plaintiffs' requests were "not specific enough.“  And finally, in United States v. O’Keefe the court stated that “…for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.”  You can’t rely solely on your client for search terms either because they may not think about all the ways the information can be used, including to show integrity or lack of or personal issues.  For example, in a case I worked on recently the client failed to mention that he had emails containing correspondence with his psychiatrist and, as a result, they were inadvertently produced. Opposing counsel then tried to use them against the client in his deposition. 

So what do you do? 

You hire someone who knows what they’re doing, preferably someone who wants to educate you as they go, a computer forensics consultant. In Equity Analytics, LLC v Lundin, citing United States v. O’Keefe, Magistrate Judge Facciola stated, “[d]etermining whether a particular search methodology, such as keywords, will or will not be effective certainly requires knowledge beyond the ken of a lay person (and a lay lawyer) and requires expert testimony that meets the requirements of Rule 702 of the Federal Rules of Evidence.”

Make sure the computer forensics consultant you select is reputable, writes well, and has experience testifying. Search the computer forensics category of our directory for computer forensics specialists in your area and see what others have to say about them.