e-Discovery and Digital Evidence





It is often said that over 90% of information preserved in tangible form is digital these days, and will reside nearly forever somewhere out in cyberspace. Obviously, this phenomenon has significant ramifications for parties to civil litigation.

This vast and rapidly expanding ocean of evidence can be gleaned from large corporate computer systems and servers as well as from tablets, laptops, mobile devices, and the digital recording units embedded in everything from medical equipment to portable GPS units and the recording systems in motor vehicles, and it can make or break a civil claim or defense.

People leave tracks across the digital universe as they search the web, post on social media, send and receive e-mails and text messages, and download data from nearly limitless sources. Failure to plumb this treasure trove through discovery and trial preparation can spell disaster for parties and lawyers alike.

While the value of this information to a successful claim or defense might be apparent, less intuitively obvious is the legal obligation to preserve digital information as soon as the possibility of litigation becomes reasonably likely. This preservation obligation extends to both plaintiffs and defendants, who must take affirmative steps to prevent the loss of relevant digital information. Failure to do so effectively will bring claims of evidence spoliation, and can result in drastic sanctions during litigation and even affect the final outcome of the case.

While digital technology is complex and rapidly evolving, the law governing electronically stored information (ESI) is developing with equal rapidity, and proves to be a challenge for litigators who are not paying close attention. Larger law firms have e-discovery practice teams available to consult with their lawyers in-house. Smaller firms and solo practitioners are hard pressed to competently function in this evolving legal arena.

Courts as well are sometimes overwhelmed by the challenges of managing lawsuits with large amounts of ESI and complex e-discovery issues. Not only can this be very time-consuming, the technical aspects can be daunting, especially when courts only occasionally encounter them. Even smaller e-discovery issues can require disproportionate time commitments for busy trial judges.
My e-discovery practice affords courts and lawyers a means of addressing these legally and factually complex digital evidence issues sensibly and economically. Courts might wish to appoint me as a referee or special master to sort through the dispute and make suggested findings or draft proposed orders. Early and intense work with the parties and their lawyers can help streamline the discovery process and promote stipulated approaches that save time and expense for all involved.

Lawyers without extensive e-discovery experience themselves might want to involve me to advise them on these issues and recommend possible courses of action. Since computer experts are often necessary to assist with e-discovery, lawyers might also want me to advise them regarding the use of these experts and possibly make recommendations as to whom they might turn.

Lawyers might also want to consult with me concerning the introduction of digital evidence at trial, including issues such as authentication, chain of evidence and presentation in court.

My e-discovery practice is available to assist courts, litigants and lawyers in all aspects of the daunting but manageable world of digital evidence.