Civil Justice Reform - Legal Service Providers Tackling The Complexities Of E-Discovery

Tuesday, November 1, 2005 - 01:00

Editor: Please tell us about your new book on e-discovery.

Blake: Titled Electronic Evidence in Litigation, my book discusses the complexities of e-discovery from a legal and technology perspective in its four principal quadrants - the identification, collection, processing and preservation of electronic information. I identify common pitfalls and traps in handling e-discovery and describe the best practices for avoiding problems within each quadrant.

The book is being completed and is scheduled for release in the first quarter of 2006. Its objective is to educate the public about how e-discovery is being handled in the courts today and to provide a roadmap to where technology is advancing. The book will give law firms and others embarking into the field an easy-to-read tool to help them understand the impact of database structures, email systems, architectures of large applications and large infrastructure environments on e-discovery.

Editor: How have you developed your expertise in electronic evidence?

Blake: With more than 15 years' technology experience in infrastructure and application consulting, I've been in the litigation support arena for more than eight years. A member of several bar associations, I'm a frequent lecturer and regular participant in discussions with many of the industry's leading experts on a variety of topics associated with forensics, management and production of electronic information.

Editor: What is your role at On-Site?

Blake: A large company, On-Site offers a vast array of services related to discovery of paper documents and electronic information. I am leading the company's international initiatives today in the arena of electronic evidence and computer forensics. Moving into uncharted waters as technology advances, we are building on our strong competencies in handling electronic evidence and electronic forensics.

Some of our more sophisticated services relate to forensic investigations and acting as electronic discovery leads on cases involving many locations involving international borders and highly complex data environments. These services include the harvesting of electronic data. Harvesting ties into the ongoing preservation of data as differentiated from the collection, which includes first and foremost where data resides once it has been identified as being relevant.

Editor: What are some of the e-discovery challenges that you are helping your clients to tackle?

Blake: I am currently leading one of the world's largest e-discovery projects. Its international scope spans more than 30 countries. The massive volume of electronic files to be searched for relevant information amounts to more than one petabyte and growing. One petabyte is 1,000 terabytes, and one terabyte is 1,000 gigabytes. The challenges related to identifying, collecting, preserving, and processing the e-evidence include compliance with the varying jurisdictions' laws related to transporting data across borders. The cultural and operational differences among the various entities within our client's organization add to the complexity.

Editor: Please tell us more about the complexities of handling e-discovery across borders.

Blake: Shortly after our conversation, I embark on a business trip that will include stops in seven countries to handle e-discovery issues. In each country, we deal with language differences as well as the technology issues that arise because data is stored differently in different venues.

From a legal perspective, the complexities include great differences in the way that data ownership is governed. In Europe, employees essentially own their data. The employer has no right to watch its employees' data activity. In the U.S., it is quite the opposite. In Germany, if an employee marks an email "PRIVOT," which is German for "private," the employer cannot look at its content without running the risk of severe penalties. To avoid penalties, the employer has to get specific approval from the custodian of the data. If approval cannot be obtained, specific steps must be followed to having the right to review and produce that potentially relevant information to the legal team.

Customs regulations add complexities when trying to take data across borders. For example, if you've done a data collection in Greece, you run the risk of being stopped by the Greek customs officials in Athens and asked about the approvals you've procured for the transportation. Encrypted data holds an entirely more complex approach in Russia and Asia due to the required declarations made to customs officials.

Editor: How do you help your clients to preserve the integrity of their electronic evidence?

Blake: Maintaining the integrity of electronic evidence requires a defensible approach as to how data is handled. At On-Site, we have specific methodologies by which we identify, collect, extract, tag, bag, store and ultimately preserve electronic evidence. We have implemented best practices that emulate those used by most law enforcement agencies and create new standards in the electronic evidence and computer forensics universe.

We coach our clients' legal teams and work with their security departments to make sure that their information protection follows best practices and adheres to the company's internal policies for protecting its data. Among the ways we help ensure that the company's data is not inappropriately disclosed, we assess with our clients the technologies that we use in processing, filtering and reviewing the electronic evidence.

Editor: How have the courts been treating e-discovery?

Blake: Until recently, the courts' treatment of e-discovery has looked like someone trying to paint a moving train. With opinions differing in state and federal courts, corporations found it difficult to discern their roles and responsibilities in identifying, preserving and turning over their electronic data.

The Zubulake decisions and Morgan Stanley rulings are indications that the courts' treatment of e-discovery is becoming more standardized. The dramatic sanctions that have been imposed around spoliation show that courts are serious in enforcing e-discovery obligations. The courts don't tolerate organizations deleting data, nor do they tolerate sub-standard forensic and processing methodologies used by vendors.

The exposure to potentially dramatic spoliation damages causes a new level of litigation. In the past, corporations did not have to create a technology team around a lawsuit. Today, a technology team is essential for dealing with evidentiary issues related to metadata structures and the way data is stored in databases. A myriad of issues also arise because of the vast volume of electronic data. Debates rage about what is an overly burdensome request as many cases run into seven figures quickly.

As well as helping litigators to prepare for courtroom proceedings, a technology team can be invaluable in responding to inquiries and investigations by regulatory agencies.

Editor: How can an e-discovery expert help litigators to meet the government's expectations that electronic information will be produced quickly and efficiently?

Blake: An e-discovery expert can serve as a special master in providing best practices and methodologies to approach the electronic evidence. From the onset, the expert can help in budgeting the e-discovery costs, which can be quite burdensome.

If an e-discovery expert is not engaged early, you run the risk of confusing protocols and data spoliation. The expert can help you to deploy best practices for identifying, collecting, processing, and reviewing the data. In any of these steps, your data can be lost or damaged and your company can be exposed to spoliation damages unless precaution is exercised.

An e-discovery expert can also be invaluable in designing and implementing the technology component of freeze directives that would come into play when litigation or government investigation is likely. If a company permits document destruction at any time or has policies defining the periods during which documents need to be retained, it is important to have a plan in place to postpone document destruction while the proceeding is pending to avoid spoliation charges.

Editor: What qualifications should a litigator look for when hiring an e-discovery expert?

Blake: You need to understand the technology being used by the e-discovery expert. If the expert's tools have some known shortcomings, they could miss potentially relevant data that can cause headaches beyond belief causing a flawed approach.

You should also ask about the expert's technical background. The expert should have experience with infrastructures and applications in large and small environments. Look for experience within information management and other roles that have given the expert an understanding about how data works.

The electronic forensics expert needs a strong background in running different forensics software applications and must know how to gather data properly. Education helps demonstrate a level of intellectual acuity. For example, a law degree can provide the expert with a background useful in understanding case strategy and the necessary steps, including the discovery phase, involved during the case lifecycle.

Editor: How can an e-discovery expert help a litigator to avoid disclosing confidential or privileged information?

Blake: Before processing electronic data, a methodology should be defined for segregating confidential and privileged information. The process should include culling or filtering the data based on search terms prior to producing the data to the opposing side. Having an understanding on how the data will flow is as important as the data itself. Haphazardly using a software application without an expert's guidance creates a risk that confidential and privileged information will inadvertently be co-mingled with the data being produced.

Editor: How can corporate counsel best prepare their corporations for e-discovery?

Blake: To be litigation ready, the best time to address the management of electronic information is before problems arise. As soon as you can, have your information systems audited to better understand what your potential exposure is.

I think that 2006 will be another break-out year wrapped around e-discovery. It's clear that the world isn't going to change the way we communicate in our business and personal lives. The Internet drives many businesses, and their business is dependant on electronic information. The question isn't a matter of "if" anymore, it's a matter of "when." An e-discovery expert can help mitigate the company's risk and exposure and gain faster control of the e-discovery beast.