When Litigation Involves Digital Evidence, Forensic Readiness Can Play a Crucial Role
Three months ago, the California State Bar Standing Committee on Professional Responsibility and Conduct released a formal opinion for a 90 day public comment distribution aimed to set some more concrete standards relating to an attorney’s obligations under the ethical duty of competence regarding Electronically Stored Information and Electronic Discovery. With the public comment period coming to a close on June 24th, 2014, Global Digital Forensics' founder discusses how forensic readiness can help both attorneys and businesses be ready for the courts when litigation involves digital evidence.
Changes Coming for Attorneys Dealing With eDiscovery
The California State Bar Standing Committee on Professional Responsibility and Conduct may be setting a trend which will soon reverberate through other jurisdictions across the country, eventually affecting attorneys everywhere. With the public comment period ending on June 24th, 2014, on their Formal Opinion Interim No. 11 0004, the race to establish new and long needed guidelines regarding electronic evidence and the eDiscovery process is getting close to the finish line. With new rules looming just over the horizon, Joe Caruso, founder and CEO/CTO of Global Digital Forensics (GDF), talks about how forensic readiness can help both attorneys and businesses be ready when evidence needed for a case goes digital.
What is forensic readiness?
“Basically, forensic readiness is having a detailed plan already in place to deal with all the headaches that can come up if ESI (Electronically Stored Information) becomes part of a litigation, and the entire eDiscovery (Electronic Discovery) process that is involved, to make sure the evidence is acquired, analyzed and produced in a way which will be admissible and accepted by the court, and of course making sure the best interests of the party involved are protected by counsel when the chips are actually put on the table in front of a judge,” said Caruso.
Some 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, geo-location tracking information and a whole host of other possibilities. Another truth is,” warned Caruso, “not every attorney has the knowledge, skillset or technical savvy to correctly handle the full scope of the eDiscovery process on their own. What the California State Bar Standing Committee on Professional Responsibility and Conduct is trying to do with this opinion is formalize some guidelines which will hold attorneys more 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, the opinion also makes another option they have very clear, to not take the case at all.”
According to the opinion, “attorneys handling e-discovery 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 e-discovery needs and issues, if any;
- implement appropriate ESI preservation procedures, including the obligation to advise a client ofthe legal requirement to take actions to preserve evidence, like electronic information, potentially relevant to the issues raised in the litigation;3. 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 e-discovery plan; and
- produce responsive ESI in a recognized and appropriate manner.”
“The opinion’s breakdown of the eDiscovery process is laid out simply and well,” said Caruso, “but 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 different types of technologies, the business practices involving ESI like routine data destruction policies, and the complete lifecycle of data and where it resides now, or ever resided, in its many forms, from creation to destruction. Simply turning a computer off and back on can have consequences affecting data, just like an attorney simply opening a file to have a look can change metadata (data about data) like access times which could be crucial to developing an indisputable timeline of events.”
Ready, willing and able to handle the digital storm
“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. With our forensic readiness assessments and eDiscovery services, we help attorneys and businesses get everything figured out beforehand, from mapping the data follow, understanding the nuances of policies and procedures related to every bit of ESI, and establish a matrix of procedures which can be immediately followed step by step from the very first hint of the possibility of litigation, and the preservation order which will be soon to follow. We take out the guesswork and can help every step of the way, from acquisition and analysis, to production and expert witness testimony. We’ve done it hundreds of times for clients in jurisdictions around the country and the world, and we are very familiar with 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, we’re just a phone call away.”
GDF can have you ready 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 intial consultation are free. For more information, visit our forensic readiness page.