eDiscovery: Opportunities for Creative Thinking by IT Professionals

Deep knowledge of technology is critical to winning modern lawsuits. When an enterprise is in litigation, the legal team needs advice and ideas from IT staff and other forensic experts.

Discovery of Records Resolves Lawsuits

Consider in particular the discovery phase of a commercial lawsuit.  The lawyers representing an enterprise wish to request, through the rules of discovery in litigation, that the adversary turn over records that are relevant to the lawsuit. The adversary’s records can help to resolve the lawsuit.

Fishing Expedition Not Tolerated

But under the rules, the lawyers must have some reason to believe that specific kinds of records exist in order to ask for them. The lawyers can’t simply ask that the adversary rummage through all of its digital stuff – all email, text messages, files, folders, images, metadata, tapes, hard drives, backup, cloud-computing accounts and on and on -- and turn over “all relevant records.” Such a request would be an open-ended fishing expedition,  which the court will not tolerate. Such a request would be far too broad and therefore not enforceable.

So the lawyers face a chicken-and-egg paradox. They want the adversary’s records, and they are entitled to get some of those records. But if they don’t know which specific kinds records the adversary might have, then they don’t possess the technical knowledge necessary to frame a request for them.

The Internet of Things Is an eDiscovery Bonanza

Enter the Internet of Things.
Evidence from Small Connected Devices
New technology – like smartphones, smart-watches and smart-grid power meters – begets prodigious quantities of heretofore unimaginable records. The records can show, for instance, who was at a certain place at a certain time or when a particular event occurred in a work room. The technology changes and advances constantly. Many new and surprising kinds of records – records that could be very impactful in a lawsuit – emerge every day.

A Demonstration from Investigative Journalism

Here’s an example of how new technology breeds surprisingly influential new records and evidence. News media investigated the spending habits of former Congressman Aaron Schock. Congressman Schock relished using social media to tell the world what he was doing all the time. But unbeknownst to him, he was telegraphing little clues – little records – about himself that would prove to be embarrassing.

Schock published Instagram photos that included time and geolocation data.
Geographic Location on Photograph
The ever-watchful Associated Press matched this data with his official (publicly available) expense reports. The AP deduced, for instance, that he illicitly rented a private jet, at taxpayer expense, for his transportation connected with a particular fundraising event in Peoria, Illinois. Ouch.

As an investigative journalist, AP published its analysis and concluded that Schock was abusing his travel expense budget. This and similar revelations contributed to Schock’s resignation.

Now Let’s Apply that Example to Litigation

Just as digital details like geolocation data can help the news media scrutinize spending by a politician, they can be decisive in a commercial lawsuit. But often the lawyers handling a lawsuit need help from people with technical expertise. Lawyers may not realize that, for example, if a video is stored in Sharepoint at an adversary enterprise, then Sharepoint may store reliable metadata about the date of the video and the dates of each revision to that video.

Very often, under the rules of discovery, the lawyer’s request for something like Sharepoint metadata must be predicated on more than a mere guess that “some kind of meta data somewhere exists with respect to the video in question.” In their eDiscovery request for records from the adversary, the lawyers need to refer to some empirical evidence that Sharepoint metadata would be relevant to the case at hand.

That’s precisely where an alert IT staffer can add value. If the staffer understands the details of the case, he or she may be able to divine that the adversary was using Sharepoint to store a video. Further, the staffer might know enough about Sharepoint (or be able to learn through quick research) to advise the lawyers they should target Sharepoint metadata in their eDiscovery request. That kind of advice can make or break a case!

IT Experts: You Should Be Inspired and Empowered  

A person with technical knowledge should be inspired to be creative … and to think outside their normal roles … to help their legal team to discern and articulate that the adversary possesses unconventional records that should be produced.

By Benjamin Wright

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