What is e-Discovery or ESI?
What is Bankers’ boxes filled with paper and manila folders were the collection and storage instruments of the past and were used in most lawsuits that were considered complex litigation. Today they are remnants of the past and have almost been eradicated. Today they have been replaced with some form of an electronically stored information (ESI) unit. These new motions for discovery or evidentiary requests are now defined as e-Discovery or ESI. All types of storage devices are now being used; from your desktop computer, laptop, iPad, smartphones, any external hard drive, data DVD’s and CD’s, flash and USB drives all are now the sources for all current and future evidence supplied in a motion for discovery. Also, let’s not forget Internet platforms like Facebook, Instagram, and Twitter that host social media commentary posts and opinion. All of these and many more are currently being used to store electronic or digital information.
How Does Discovery Work in A Complex Litigation Case?
What hasn’t changed in complex litigation is how to find the proof to get to the truth. In the new digital world when data continues to grow exponentially driving up case expenses. The ability to sort, process and most importantly authenticate the provenance of data in an organized manner is paramount. The law firm and its client, who could be anyone from a Fortune 500 corporation to a small or medium sized business or even an individual who has been harmed and impacted requires a strong defense or advocate seeking justice on their behalf.
How Does e-Discovery Work
Today’s armament is E-Discovery and it will be used to wage battle partly behind a video monitor and in courtrooms across the United States. Leveraging eDiscovery will mean the difference between winning and losing in civil and criminal courts everywhere. Finding the documents that will help drive the narrative and craft the story efficiently and effectively will be the way your case gets proved, all the while keeping case expenses down.
E-Discovery, when managed by technology specialists and software athletes, whose expertise is managed document review, can reduce the stress of high stakes complex litigation
Well-crafted storytelling is derived from e-discovery, utilizing a best practice approach, will develop the trial strategy necessary to create all future arguments, motions, and depositions ensuring a robust and comprehensive trial preparedness, proving beyond a reasonable doubt the merits of your case.
Managed doc review in some complex litigation with less than 5,000 documents, may still be a brute force equation. The calculation changes considerably when you have hundreds of thousands and sometimes millions of documents, which makes getting to the heart of the matter a Herculean challenge. You still need to have your data validated, which is often the last thing counsel thinks of. It’s easy to become more concerned with the fight over discovery than checking and confirming the actual state of the data.
This means finding hidden needles in a haystack the size of a small mountain or a relatively tall building. To give it some context, the tallest building in the US is One World Trade Center in lower Manhattan, New York, measuring 1776 feet, which is the equivalent of 5.5 million sheets of paper stacked. This is not an uncommon amount of data that is often processed and reviewed in complex civil actions as well as in some criminal actions.
When Michael Cohen, the president’s former attorney, was indicted and convicted both sides were given roughly 40 days to review evidence that included millions of files, videos and documents. Everyone needs technological resources such as project management, review software, and hosting to manage e-Discovery projects regardless of who will do the managed doc review. In fact having the most efficient technology and hosting solution can reduce the total overall cost of litigation by sometimes hundreds of thousands of dollars per matter. For every 1GB reduction in volume size you eliminate the need to review 3,000 to 4,000 documents. That’s a savings of 60 person hours of work.
Now what can you do if you suspect your adversary has tampered or doctored the data you have received from them? Having the ability to audit the data’s authenticity using cyber forensics is becoming invaluable. In a recent litigation case study the defendant provided false testimony using invented evidence. The plaintiff’s cyber forensics technology team uncovered the fake evidence presented in court. This uncovered the defense’s bad behavior. It undermined their credibility and exposed the weakness of their case to the court. Their cheating resulted in a harsh sanction by the presiding judge. When there is a lot at stake in prevailing in these types of cases, bad behavior on behalf of cheaters who are ethically challenged will continue to be par for the course.
The moral of the story is do not underestimate your adversary when they are capable of numerous bad acts. Make sure you are operationally sound to insure you’re competing on a level playing field, have the most up to date software, tools and experienced personnel at your disposal, otherwise you may find yourself leaving money on the table.
To see how much you have left on the table in the past, consult a e-Discovery expert who can audit free of charge any of your past cases and prove to you how to reduce your eDiscovery expenses significantly.
About Rene Perras
E-Discovery/ESI and Managed Document Review Consultant for Law Firms. If your law firm needs an audit on a complex litigation matter where you can save time and money on discovery you can contact me for e-Discovery audit.
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