The pursuit of electronic documents in the discovery phase of litigation has evolved from a strategic option to a necessity. Both business and home computer users maintain vast amounts of candid information in electronic mail messages, word processing documents, financial software, appointment scheduling packages and other programs. All of this is discoverable evidence, even if the information has been erased or archived on removable disks or tapes. It has become impossible to have a complete picture of events without access to these electronic records. More and more corporate communications never reach paper in this age of e-mail and multi-user software programs. For all its high-tech wizardry, the computer has evolved into an extraordinary filing cabinet.

Costs and logistics

Consider the cost and management of electronic discovery efforts once you learn that the opposing side employed computers during the events in question. The cost will vary according to the complexity of the targeted computer systems. Most experts bill for time and materials and require an advance retainer. Some cases may require only a few hours of work. More complex investigations with more numerous and complicated computer systems can run many thousands of dollars. Electronic discovery efforts have an unusually high return on investment. The uncensored nature of the information is quite compelling and frequently facilitates settlement.

A prudent computer expert will manage the costs of their own investigation by working closely with the attorneys and client. The expert should review all computer-related interrogatories and discovery requests to insure the necessary information is gathered in an efficient manner. A well-informed expert is your best defense against time and money spent pursuing irrelevant information. As in paper production, the expert can reduce costs by focusing on the areas most likely to contain pertinent evidence.

Expert’s role

Computer experts are more effective when engaged early in the litigation process. This extra time will insure that the resources needed for the actual recovery and analysis of the evidence are in place. Lead time also allows the expert to become fully familiar with the facts in your case and become part of the team. It may be particularly valuable to have the expert attend any 30(b)6 depositions of computer support personnel to help communicate in technical jargon.

There is an enormous variety in the types of computers, disks, tapes, and software the expert may encounter during a typical investigation. This means there are a number of ways to gather electronically-stored information. While an experienced expert can anticipate many technical hurdles, it may be necessary to enlist the help of another computer expert with a complementary skill set. You may also have to engage another company to collect evidence from non-standard or severely damaged computer components.

Investigation strategies

Request computer-based information as quickly as possible. The information kept on computers is dynamic, and computers are frequently upgraded, replaced and redeployed. Improve the odds facing your computer expert by pursuing this evidence as soon as you determine it may be pertinent. Follow-up on your requests to insure compliance, and have your computer expert ready to proceed on short notice.

Your case may depend on obtaining computer evidence quickly. A case in Rhode Island turned on files that had been deleted in the normal course of business. The critical evidence was an electronic mail message proving that the treasurer of a manufacturing company had passed trade secrets to a competitor. The volume of electronic mail messages dictated that the computer system’s administrators purged messages more than 90 days old. These messages were backed up nightly on a series of five backup tapes representing each day of the work week. The incriminating message had been purged, but it still appeared on two of the five tapes. A delay of just two more days would have prevented the message from being found, and the case would likely have been lost.

It may be helpful to have the expert focus on compiling successive versions of a single computer file. This technique can show the evolution of a thought process, and in many cases the expert can determine who modified the document when. Additionally, the information retrieved from computers can be used to reconcile records from other sources such as banks or telephone companies.

The Internet has induced many computer users to wile away hours "surfing the net" for entertainment and information on topics of personal interest. A savvy computer expert can examine this activity to construct a compelling personality profile, providing insights that would never be available from paper production efforts. The impulsive nature of electronic mail provides a similarly candid glimpse of events, with all messages stamped with the date, time, and senders’ and recipients’ identities.

Testimony

Your computer expert may be awkward and uncomfortable in a confrontational environment like the courtroom. "Well, you wouldn’t play poker without knowing the rules, would you?" asks Dr. David Benjamin, a clinical pharmacologist and toxicologist in Chestnut Hill, Massachusetts. "If an attorney is going to ask a computer expert to give a deposition or testify in court, he/she should prepare the expert for the experience." Dr. Benjamin conducts communication seminars on developing "active listening" skills, teaching experts how to recognize and handle trick questions and rhetorical traps during questioning.

According to Dr. Benjamin, "It is the attorney’s duty to let the expert know what he/she is in for. The attorney should emphasize the need to listen attentively to each word in every question, and to ask for clarification when confused or unsure. He/she should explain that the question and answer format at deposition is designed to collect impeachment information to be used against the expert at trial, as well as to gather information. The attorney should take a few moments to demonstrate the adversarial nature of cross-examination, caution the expert to expect to have all opinions challenged, and to anticipate the presentation of alternative theories. Finally, the attorney should review the five basic areas likely to be addressed on cross-examination: qualifications, knowledge of the facts of the case, bases of the expert’s opinions, degree of certainty, and completeness of their review." Equipped with the knowledge and preparation prescribed by Dr. Benjamin, the witness can feel more comfortable while testifying and develop a courtroom presence that would otherwise take years to cultivate.

Defensive strategies

Attorneys should advise their corporate clients about the importance of developing a data retention policy before they are involved in litigation. A properly implemented, well-crafted data retention policy can have a huge return on investment. Without such a policy litigants must assess their exposure to retaliatory electronic discovery requests before pursuing computer-based information. Data retention policies improve the security and quality of the information the corporation uses to make critical business decisions while limiting exposure to electronic discovery efforts.

Managing corporate data has become both more difficult and urgent with the widespread use of personal computers. Ironically, computers can become part of the solution with technologies that facilitate and track data retention practices. A good policy will be crafted with the help of the company’s computer support staff and senior managers with legal and financial responsibilities. Make sure the policy addresses the appropriate use of company electronic-mail systems, how information will be destroyed, and how privileged records are segregated. It should also detail how electronic information is secured in the event of litigation. A successful policy will have the cooperation of senior management and be inaugurated with informational presentations for employees.

Conclusion