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Practice Tips
Lessons From the Trenches in 2003
by Daniel L. Rasmussen, Esq., Payne & Fears LLP
Attorneys run the risk of losing cases when they fail to understand electronic evidence. Litigators must learn how to identify it, how to find it, how to use it, and how to avoid problems when dealing with it. Here is a recap of important lessons from 2003:
- Your discovery plan should not only address discovery of evidence maintained in hard copy, but must also account for any electronic evidence which may be relevant to the dispute. Nothing is as certain to cause a law firm to lose credibility with its client, opposing counsel, or the court as conducting electronic discovery in a haphazard manner.
- Learn something about the way in which evidence is stored on computer hard drives. Even after an electronic document is supposedly "deleted," it may still be found in the magnetic bits and bytes written to a hard drive. Remember that a file does not "go away" until it is written over during the writing (i.e. recording) of new electronic data to the disk.
- Learn something about the way in which email is maintained. The quantity of a witness' diligence in maintaining his/her electronic mailbox could turn into a goldmine or a disaster for you. Find out where mailboxes are archived, if they are even archived at all. Understand SPAM filtering and whether there may be stores of un-reviewed SPAM on a server.
- Learn something about the way in which evidence is stored in different computer backup scenarios. Gain an understanding of client-server network operations. Ask what RAID means. Consider how tapes are written with electronic information and what types of rotation schedules are customary.
- Counsel your client to resist the temptation to "take a quick look" at a witness' computer. If not executed using proper forensic methods, your brief glimpse into the witness' files may create unintended changes in the data or the information that describes the data (a.k.a. meta data). You have better things to do during litigation than defend against claims of spoliation or evidence tampering.
- Make it a practice to ask the court to issue an evidence preservation order. Offer a proposed order in which the court mandates that the hard drive of possible witnesses be imaged immediately. The order should also address email and server backups.
- It is the rare law firm that can handle electronic evidence alone. Hiring an expert may save you or your client a lot of money and/or aggravation in the long run.
Daniel L. Rasmussen of Payne & Fears LLP heads the firm's Technology Committee. He is a business litigation partner based in the Irvine, CA office. He formerly practiced with the Litigation Department of Paul, Hastings, Janofsky & Walker LLP.
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New ABA E-Discovery Resource on FRCP Amendments
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