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Since the first part of this article was written, electronic discovery has made front page news. First came the word of document shredding by Enron and Arthur Anderson. But, after a few days furor, the papers were reporting that the shredding would make no difference since the data was still discoverable in electronic form.
While most of you will not be involved in litigating the country’s largest bankruptcy, sooner or later you will be involved in some aspect of electronic discovery. The exact way to go about it will depend on the nature of the data being sought and the type of case, but here are a few tips.Get the Data in the Original Format
Don’t accept a paper, or a printed and then scanned document. The original electronic format gives you the metadata and other relevant information.
Find the Hidden Caches
Although the original copy of a document has been erased, additional copies may be stored in other locations on the computer or in the network. To find where and in what format consider doing a 30(b)(6) deposition of the E-mail administrator or other most knowledgeable person.
Document the Chain of Custody
One way to locate additional information is by “imaging” a computer’s hard drive – making a complete copy of everything on it – and then using forensic software to locate any hidden or deleted files. “In intellectual property cases, you can sometimes get an ex parte seizure order to go in with marshals and see data right away,” says John Patzakis, General Counsel of Guidance Software.
But, in doing so, he advises that people keep a clear chain of custody of the evidence. Just as you use a court reporter or certified photocopy service to obtain medical records, so should a third-party be used to obtain and image the hard disk.
Get Expert Help
You use a computer and have a body, but that doesn’t mean you are an expert in either one. Just as you hire your own doctor to analyze the opposition’s expert testimony, you may find it prudent to hire an expert in electronic discovery. Often the key is not analyzing what is there, but being able to recognize what is missing.
“If I don’t see a 12-18 percent e-mail attachment rate I know something is wrong and can go into court and ask for it,” explains John Jessen, founder and CEO of Electronic Evidence Discovery. “Either they are purposely not providing the information, they don’t know how to do it right, or they are a very strange company.”
Analyzing the Data
On the one hand, it can be great to learn that a company has backup tapes of every e-mail sent in the last five years. But then it hits you that a single backup tape can contain 300 million e-mails – the equivalent of 360,000 bankers boxes of paper documents. As The X-Files Agent Mulder would say, “The answer is out there.” But finding that answer in a pile of backup tapes might take more years than that popular TV show has been running.
This is where forensic software really comes into its own. Not only does it discover the deleted files, and expose the metadata, but it can also help analyze, categorize and manage all the different types of files on a disk.
Guidance Software’s EnCase, for example, simultaneously searches across multiple imaged hard drives. And it has built-in viewers for different file types so the user can go from looking at a fax to an e-mail to a photograph to a letter without having to switch between programs.
Another key element of forensic software is its ability to go through all the documents and recognize duplicates. That way, when an e-mail and its attachment gets forwarded to everyone in the company, you don’t have to look at the same document a thousand times and it only shows up once in the index.
Get an Early Start
The final bit of advice is to start planning for electronic discovery early on in a case. It takes a different set of skills than normal paper-based discovery, and this needs to be accounted for.
“Attorneys going into a case need to start thinking about this early on and develop the right resources,” says Jessen. “If you need to go through 1000 backup tapes, or go through a billion e-mails, you need to look for resources to help you do that.”