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Archive for October 12th, 2007

Electronic Discovery Draws the ABA’s attention–and do you always need a forensic collection?

Posted by rjbiii on October 12, 2007

Two current ABA Journals have devoted significant space to electronic discovery. First, the Sept./Oct. edition of Business Law Today (a journal of the Business Law Section of the ABA–no links to stories, only available in print) has made the subject its “mini-theme,” with several articles looking at different aspects of e-discovery. Next, SciTech Lawyer (section membership required), a publication of the Section of Science and Technology Law of the ABA, has devoted most of its Fall issue to the topic.

One article I’d highly recommend is Sarah Michaels Montgomery’s “E-Discovery: Aligning Practice with Principles.” It discusses some of the areas where modern practice diverges from some basic principles of discovery, and the first item on the list concerns collection. I’d like to quote one paragraph that serves to illustrate her pessimism about always needing to collect data by capturing forensic images of custodians’ drives:

Responding to the suggestion that the E-Discovery Rules require a bit-by-bit image of all witnesses’ hard drives each time litigation is reasonably anticipated,” a colleague recently quipped:

We’ve been doing paper discovery for years, and no one has ever asked a witness to polyurethane his office. Witnesses have always opened file cabinets, gone through drawers, and reviewed paper documents to see what is relevant. Requiring a bit-by-bit image of every hard drive every time litigation is reasonably anticipated is like requiring all witness office spaces to be forensically preserved. Imposing sanctions because an electronic file was moved is ridiculous. No one would ever say in the paper context, “My witness moved a sheet of paper from his desktop to a folder. I guess you win.”

There are different collection procedures, and some are right in some situations, but wrong for others. Although a consultant can hardly be faulted for being conservative in his or her suggestions, the answer cannot simply be to always collect a mirror image. To be blunt, if that is the case, then there is no need for a consultant, only for a data collector with the right tools and experience. A true consultant looks at the framework that will determine spoliation (court’s and opposing counsel’s expectations), tie that framework to the available technical solutions, and make a reasonable recommendation. Ultimately, it is the call of the attorney managing the discovery project (or the client) as to what direction to take.

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