Attorneys: What You Don’t Know About Data and/or eDiscovery CAN Hurt You

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A lot of headaches can come up if evidence goes digital and ESI (Electronically Stored Information) becomes part of a litigation, which is why competence, adaptability and accuracy are essential throughout the entire eDiscovery (Electronic Discovery) process.  It's crucial to make sure the evidence is acquired, analyzed and produced in a way which will be admissible and accepted by the court, while at the same time making sure the best interests of the party involved are both maximized and protected by counsel when the chips are actually put on the table in front of a judge.

Some Basic Truths about eDiscovery

The truth is, almost every litigation today involves some type of digital evidence, from emails and texts, to documents, spreadsheets, IP (Intellectual Property), Internet history, geolocation tracking information and a whole host of other possibilities. Another truth is, not every attorney has the knowledge, skillset or technical savvy to correctly handle the full scope of the eDiscovery process on their own. But there are widely accepted guidelines which will hold attorneys accountable when they take on a case where eDiscovery is involved and make them trend toward getting the professional assistance they need instead of stubbornly moving forward on their own if they are lacking the proficiency and experience needed to correctly navigate the entire, and sometimes very complicated, eDiscovery process from start to finish. And if they are unwilling or unable to get expert assistance, courts will quickly make it clear it is a bad idea to even think about trying to go it alone.

Attorneys’ Obligations

We live in a digital world, and in jurisdictions around the country, it is expected that attorneys handling cases involving eDiscovery should have the requisite level of familiarity and skill to, among other things, be able to perform (either by themselves or in association with competent co-counsel or expert consultants) the following:

  • Initially assess eDiscovery needs and issues, if any
  • Implement appropriate ESI preservation procedures, including the obligation to advise a client of the legal requirement to take actions to preserve evidence, like electronic information, potentially relevant to the issues raised in the litigation
  • Analyze and understand a client’s ESI systems and storage
  • Identify custodians of relevant ESI
  • Perform appropriate searches
  • Collect responsive ESI in a manner that preserves the integrity of that ESI
  • Advise the client as to available options for collection and preservation of ESI
  • Engage in competent and meaningful meet and confer with opposing counsel concerning an eDiscovery plan
  • Produce responsive ESI in a recognized and appropriate manner

While those eDiscovery obligations may seem simple and straightforward, the details actually involved in successfully completing those steps can be tricky and fraught with pitfalls if someone is not current and intimately familiar with all the different types of technologies in use, the business practices involving ESI like routine data destruction policies, and the complete lifecycle of data (where it resides now, or ever resided, in its many forms, from creation to destruction). Simple things like turning a computer off and back on can have consequences affecting data, or an attorney simply opening a file to have a look at its contents can change metadata (data about data) like access times which could have been crucial to developing an indisputable timeline of events.

There are so many things to watch out for during every step of the process, and if even one thing is done incorrectly, the evidence may become tainted and/or inadmissible, leaving the attorney and the litigant facing sanctions, fines, and of course, costing them a successful resolution to the case.

Get it Right from the Jump

In a perfect world, the best time to get GDF involved is from the very first hint of the possibility of litigation, even before the preservation order which will likely be soon to follow arrives. But no matter what stage of the process you are in, it’s never too late for the right help. GDF can take out the guesswork and help every step of the way, from acquisition and analysis, to production and expert witness testimony. We’ve helped attorneys successfully litigate cases involving ESI hundreds of times in jurisdictions around the country and the world, and we are very familiar with the slight variations eDiscovery rules have on both federal and local levels, so there is absolutely no reason any attorney, or business, should take chances with their future by not handling digital evidence and the eDiscovery process the right way.

GDF is the Right Call to Make When Evidence Goes Digital

Global Digital Forensics is a recognized leader providing cutting edge solutions in the fields of computer forensics, eDiscovery, cyber security and emergency incident response. GDF is strategically positioned with resources across the country and the globe to react quickly and efficiently with a staff of highly qualified and experienced specialists. Many Fortune 500 companies have trusted GDF with their most sensitive situations. GDF has the technology, skill and experience to ensure any computer forensics tasks and/or eDiscovery needs are handled in a highly cost-effective manner, while always ensuring exceptional, defensible results. To speak with a GDF evidence specialist about a plan to suit your unique needs, call 1-800-868-8189. The call and the initial consultation are free. For more information, visit our forensic readiness page, or if you want us to contact you, simply fill out the form below and we’ll be in touch soon.

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