Mastering and Managing Electronic Discovery
In the past, attorneys had to oversee the data collection of mountains of paper from their clients to meet court ordered discovery requests. With the advent of the electronic age, The Sedona Conference estimates that in excess of 90 percent of all business communications are now in an electronic format. Today, counsel is required to not only be an expert in the rules of civil procedure, but is expected to be in-charge of the vastly complex discovery demands that their clients routinely encounter.
As CEOs and boards come under intense pressure from shareholders to increase profits by driving down expenses, there is not a single business unit that is immune from the cost cutting axe. One of the most troubling cost factors for a CEO is the large and variable nature of a company's legal expenses. Unlike other business units, the general counsel or chief legal officer is responsible for handling the legal affairs of a company and thus the costs associated with a large-scale litigation or regulatory investigation fall squarely within their domain.
Corporate counsel is now tasked with oversight of outside counsel, as well as effectively managing and controlling the costs associated with electronic discovery (eDiscovery or e-Discovery), while simultaneously ensuring that the company is able to successfully manage its legal actions. As business has moved to digital platforms, the sheer volume of electronically stored information ("ESI") has increased at an astronomical pace. The amount of e-mail (email) alone being created by a company is growing at a rate of 30 percent annually.
The growing importance of electronic discovery is well established. Litigation counsel has received invaluable information regarding eDiscovery from prominent legal think tanks, most notably The Sedona Conference. The Sedona Principles are a seminal legal work that was collaborated on and published by leading federal and state judges, law school professors, attorneys, experts and consultants that were members of The Sedona Conference Working Group Series (for electronic discovery) and is frequently referenced by both lawyers and the courts.
The Sedona Principles which set forth the "best practices" to be followed in electronic discovery matters / cases have also greatly influenced the Federal Rules of Civil Procedure, which were amended in December 2006, as well as a multitude of state legislation that are essentially adopting amended rules for civil procedure for their respective states to deal with eDiscovery issues. [Link to The Sedona Conference]
In a legal blog, for Datatriage Technologies, Thomas Allman wrote the following: "The landmark case of Zubulake v. UBS Warburg, 220 F.R.D. 212 at 217 (S.D.N.Y. Oct. 22, 2003) ("Zubalake IV"), relied upon The Sedona Principles for the proposition that "as a general rule … a party need not preserve all backup tapes even when it reasonably anticipates litigation." Many courts have cited or specifically followed this holding. " The law blog further goes on to state "[t]he leading case of Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 2007 WL 684001 (D. Colo. March 2, 2007), for example carefully blends the teaching of The Sedona Principles with case law in order to resolve complex challenges to a litigation hold process."
Through front-end litigation consulting (litigation preparedness or litigation readiness), counsel can work closely with the specialized technology consultants and experts that are members of the eDiscovery service provider to ensure that the end-to-end electronic discovery solution or process is seamless, efficient and cost effective. Technology consultants can provide invaluable insight to counsel and help guide them on how to best deal with the massive amounts of electronic and paper discovery that they often encounter. Close consultation between counsel and the e-Discovery experts will enable clients to realize significant cost savings throughout all stages of the eDiscovery process which includes: front-end consulting; identification; preservation; data collection (note: it is best practice to use experienced and independent computer forensic specialists to conduct and/or oversee the data collection to ensure that the relevant data is admissible at a later time, if necessary); project management; electronic data processing; document review and analysis; web based hosting; and production of data.
There are a multitude of e-Discovery services that the best and/or top electronic discovery service providers can offer to counsel, and depending on the litigation strategy and what is determined to be relevant the attorneys will work with their technology experts to choose those services that are relevant from the following large menu: conversion to TIFF (Tagged Image File Format) or PDF (Portable Document Format); data conversion; data culling; data filtering; data hosting; data mining; electronic data or document processing including e-mail (email), word processing and spreadsheet programs, Internet or web pages, databases, presentations, etc); data repository or data storage (also known as data warehousing); deduplication (de-duplication or de-duping) which involves the elimination of duplicates or near-duplicates; load files; metadata extraction; online (on-line) document (or data) review and analysis; online (on-line) hosting of documents or data in native format, TIFF, PDF amongst others; tape (or backup tape) recovery and restoration; TIFFing or PDFing documents; and web hosted document review.
Frequently counsel requests a number of the above-referenced service offerings, as well as those dealing with the following: coding; scanning; OCR (or OCRing; Optical Character Recognition) services; identifying, recovering and restoring deleted data or files; parent-child relationships; PST (Personal Folder File) or ZIP files; full text (full-text) searching; spoliation issues; automated document or data processing; error or exception reporting; conceptual or concept search review applications or tools; batch processing; search indexing; chain of custody issues; audit trails; real-time application and database support; and being able to provide 24x7 technical support and maintaining a fully secure and reliable data center, as well as a best practice disaster recovery site or location.
Experienced counsel have utilized the consulting services of top eDiscovery service providers that offer both electronic discovery and computer forensic expertise as the service offerings can often be deployed on a single matter to achieve tremendous success on behalf of clients. When attorneys are looking to identify, locate and uncover the relevant data or evidence that appears to be undiscoverable the use of very experienced computer forensic or high-tech (or hi-tech) investigators can dramatically change the outcome of a case. Computer forensics (digital forensics or digital investigations) is one of the most powerful weapons in an attorney's arsenal if used strategically in the following types of common cases: trade secret theft; human resource investigations; internal corporate investigations; fraud investigations (including financial statement fraud); intellectual property theft; white-collar investigations; evidence destruction; encrypted data or files (encryption issues); spoliation matters; false claims based on tampered evidence; Internet based criminal activity; and authentication issues.
High-tech investigators that specialize in incident response and conduct computer investigations can assist counsel in finding the proverbial "smoking gun" which can make or break a case. The use of leading software and tools (e.g., EnCase the gold standard which is licensed by Guidance Software), as well as proprietary techniques or methodologies by the right forensic specialists can assist counsel in developing a smart litigation strategy that reduces costs. The digital investigator can conduct the forensic collection, perform the high-tech investigation and then serve as an expert witness, if needed.
One of the more complex investigations that clients now turn to lawyers for guidance on are those that involve IT security breaches to the company's infrastructure. Many companies have found themselves victims of hackers whom have illegally penetrated their IT infrastructure to steal sensitive client data or information. It is extremely important for a client to immediately regain the trust of their own clients and to be able to assure them that their personal identification data or information is safe, or that steps are being taken to remediate the data breach. The top or best electronic discovery service providers also have experts in the field of IT security as part of their team to provide critical assistance during such times of crisis.
The rapid deployment of both IT security and computer forensic specialists can serve both the client and counsel extremely well. IT security experts are very experienced in dealing with a host of IT security breach type of issues, including: cyber security (cybersecurity); data breach; ethical hacking; intrusion detection; ISO 17799; penetration testing; security breach; security testing; social engineering; threat assessment; computer virus or worm or Trojan horse detection and investigations; virus outbreak; vulnerability assessments; anti-virus methods and processes; anti-virus software; prevention (preventative steps) and recovery consulting; and web defacing.
As innovation continues to change and shape the way that business is done in the electronic age the rationale for a strong partnership between counsel and highly skilled technology experts and consultants that specialize in eDiscovery, computer forensics (high-tech investigations), IT security and litigation preparedness (litigation readiness) is all the more compelling. Clients need to drive down and manage the costs associated with the enormous amount of digital or electronic data (information) that is typically involved in any large-scale litigation, regulatory or government investigation or inquiry and best practice clearly dictates the use of counsel teaming up with the right technology partners that share the same objective of providing excellence in client service, while allowing the client to realize significant cost savings.
Precision Discovery is an independent IT risk and litigation consulting firm dedicated to helping organizations and their counsel their most critical litigation, regulatory and investigative matters. Our specialists assist clients throughout the country with electronic discovery, computer forensic, litigation preparedness and IT security consulting issues, including organizations located in Alameda, Huntington Beach, Irvine, Los Angeles, Oakland, Orange County, Palo Alto, Sacramento, San Diego, San Francisco, San Jose, Santa Clara, Silicon Valley and Redwood City, California as well as companies and their counsel in Newark and Trenton, New Jersey; Albany, Long Island, Manhattan, Nassau and Westchester, New York; and Harrisburg, Philadelphia and Reading, Pennsylvania.
1 Frank Chambers, “EDD Tips for Email from the Front Line,” Law Technology Today, March 2007, referenced in Cynthia L. Jackson, Business Guide to Compliance: Plan Now for Managing Electronic Data & Avoid Tomorrow’s Legal Risks, Baker & McKenzie, 2007, 31.
2 According to top electronic discovery industry surveys, such as the Socha-Gelbmann Annual Electronic Discovery Survey
