One of the reasons I decided to learn e-discovery was to save money. Early in my career as a lawyer, I developed a strong aversion to spending money on experts and litigation vendors. After spending $5,000 out of my own pocket in my first year of practice on an expert who literally did nothing, I decided I would try to go without so-called experts as much as possible. Fortunately, in my employment law cases, experts were rarely needed. When I did use experts, it was generally for specialized technological issues: offering testimony on a smartphone’s retention of text message data or collecting sensitive evidence from a smartphone. But, most of the time, I did all of the e-discovery work myself.
My do-it-yourself approach differed from the approach recommended by many in the field of e-discovery. For example, lawyer and e-discovery expert Ralph Losey states that an e-discovery team “should include scientists and engineers in some way.” Blogger and consultant Joshua Gilliland recommends having “expert witnesses conduct data collection.” There are two undercurrents supporting these assertions. The first is the consideration that many lawyers do not have the technical skill to collect, review, and produce electronic evidence. The second is that attorneys who participate in collecting electronic evidence could later be disqualified as counsel if they are required to testify about the steps taken in collection. Both are legitimate concerns, but neither forbids a competent and knowledgeable attorney from handling most (if not all) of the technology aspects of an e-discovery case.
Let’s first consider the threshold question of disqualification based on collecting evidence. Not surprisingly, this concern is most often raised by vendors whose business model presupposes that counsel will not handle the majority of the technical tasks associated with e‑discovery. But is there any truth to the assertion?
The argument is that an attorney who performs tasks like downloading client data from an email account, copying files from a hard drive, or exporting data from a social media site becomes an involuntary expert witness in her own case. But the same point, which wouldn’t make any sense, could be made with regard to attorneys who accept paper files or tangible evidence from their clients. We clearly have a responsibility to keep our clients’ papers in a safe condition and not to modify them, but handling them doesn’t subject us to the risk of disqualification. Accepting evidence from one’s client, whether in tangible or electronic form, is part of an attorney’s ordinary work for a client and should never make counsel subject to disqualification. If it did, we would have to hire a vendor in every case because almost every case today involves electronic evidence.
Assuming, then, that lawyers can do e-discovery without hiring a bevy of vendors, what are the keys to success? I submit that they are threefold: competence, transparency, and access to the proper tools.
I put competence first in the list because handling electronic evidence truly does require some skill and knowledge. For example, it’s possible to collect emails from a webmail service such as Gmail or Yahoo! using Outlook, but it requires patience and willingness to read some documentation. It’s unlikely that you’ll inadvertently destroy the email account or alter its contents, but you won’t be able to download the emails unless you’re willing to fiddle with the Outlook configuration for the account. Following blogs and websites dedicated to e-discovery is an important aspect of competence - you need to stay up-to-date on the topic. You also must dedicate the time to become a competent and confident user of whichever tools you decide to use. Safely copying files from an external drive is something most of us can do, but this is a task that counsel should approach with caution, and it ties in with my next point on transparency.
By transparency, I mean telling the other side what you plan to do and what you plan not to do. This is a good idea for a variety of reasons. First, it’s often the best way to immunize yourself from charges by the other side that you mishandled electronic evidence. If you write to your opposing counsel, notify them of your intention to collect and preserve evidence by taking simple steps A, B, and C, but not by taking expensive steps X, Y, and Z, and opposing counsel either agrees with your approach or fails to object in a timely manner, then the chances are very slim you’ll face problems down the road. Second, you benefit from the “I’ll show you mine if you show me yours” approach—that is, if you are transparent, there’s a much better chance the other side will follow suit. Sharing some information about your e-discovery methods could lead the other side to share extremely valuable information with you at an early stage.
The third factor is having the proper tools. You can’t do e-discovery if you don’t have some basic tools for reviewing, tagging, collecting, and producing electronic evidence. I’ve used Navicat for dealing with databases, iExplorer for pulling data from an iPhone, Nuix Proof Finder for review and tagging, Outlook for collecting webmail, Adobe Acrobat DC for redacting and applying Bates-labels, and Bulk Rename Utility for numbering files by their file names. For an extra degree of safety when collecting data, I also own a USB write-blocker and a Forensic UltraDock from WiebeTech. These tools are sufficient for most cases and, if you know how to use them, you can be an e-discovery ninja. Better yet, you can acquire all of them for a total price of less than $1,000. (We’ll be discussing each of these tools in detail in upcoming blog posts - follow CaseFleet on twitter for updates!)
The primary cost of e-discovery when you take the DIY approach is the time it takes to learn the concepts and technology. After the upfront cost of the tools and the time spent learning them, the benefits pay permanent dividends and empower you take the reins in your caseswithout involving expensive vendors. Using these tools, discovery became another opportunity to get a good result for my client, instead of a costly burden.