Every attorney working in the eDiscovery space will find themselves there at one point or another. Your new big case is for a cost-conscious client who insists on handling their evidence collection in-house instead of outsourcing their data collection to an independent licensed certified digital forensic professional. Your client will ultimately turn to you to approve of their desire to self collect their electronically stored information (ESI) as they simultaneously reassure you that their local IT person on staff is sufficiently qualified to handle the required data collections. So what’s a counselor to do? Here are three imperative factors that should always be taken into consideration before endorsing a client’s desire to self collect their own ESI.
Spoliation in eDiscovery terms is the intentional or unintentional alteration or destruction of digital evidence. The cardinal rule of digital forensics is to never alter or change the targeted source evidence in any way during the process of a forensic collection (unless otherwise technologically impossible). While self collecting their own data may be an attractive proposition for your client from a cost savings perspective, they do need to fully understand the risks associated with this course of action. For example, what if their onsite IT employee were to make a mistake during the collection process resulting in the inadvertent destruction of the evidence? At that point it will be too late to mention that millions of dollars in fines and sanctions are imposed every year as penalties for improper data collections that resulted in spoliation. In some of the more severe instances individuals have actually been incarcerated when spoliation was viewed as a criminal act. The crux of this issue is that when data spoliation occurs as the result of a self collection it instantly raises questions on whether the deletion or alteration of the source evidence was an intentional act. At best your client may be viewed as negligent for failing to rely on a certified digital forensic processional with the proper training. At worst, the sky is the limit.
Can an employee dependent on their paycheck be truly impartial when collecting ESI for a legal matter where the results of their findings may be detrimental to their own employer’s future? Can an employee be truly impartial when tasked with collecting ESI from a fellow colleague? These are the kinds of questions that can arise in court that should be kept in mind when endorsing a client’s desire to perform a self-collection of their own digital evidence. Although data is not commonly viewed by many as a tangible entity, the storage devices that house data are certainly material objects. Therefore any client deciding to collect their own digital evidence from a hard drive for the purposes of litigation could be viewed in the same vein as a murder suspect working on the evidence collection team for their own murder trial. Various aspects of the process will always be able to be called into question just by the very nature of the collection not being conducted by an impartial party. Using an independent certified digital forensic professional for your ESI collections ensures that questions of impartiality won’t be used to challenge the credibility of your collected data.
3) OPPOSING COUNSEL APPRECIATES YOUR ASSISTANCE
So even after the required data has been collected by the trusted onsite IT employee there is still some consideration that should be taken in regards to how that individual is going to handle explaining their collection methodology at a deposition, or in a courtroom. Without a documented history of professional training and experience in digital forensic collections there are few things that have the potential to make opposing counsel’s job easier than the revelation that evidence was not collected by a licensed certified forensic professional. In all facets of life we naturally tend to equate experience with higher levels of expertise and performance. Imagine hearing vague details about a large ongoing malpractice case involving a new surgeon who was performing their first solo procedure. Without knowing any of the facts of the case your natural inclination is to acknowledge that there is a higher likelihood that a mistake could have been made by a surgeon who has been practicing for a shorter period of time. That same shadow of doubt can be casted on your own case when credentials come into play. Your clients need to realize that just because they have decided not to employ a forensic expert it does not mean that opposing counsel will do the same. Your clients also need to be cognizant that the primary objective of opposing counsel’s forensic expert is to find any identifiable error in a data collector’s methodology. If they are successful in finding even one mistake then all of the evidence that your case is hinging on instantly loses its value in court. Cost-conscious clients need to understand most of all that losing in court is generally always going to be more costly than employing a certified digital forensic professional in the first place.
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ABOUT THE AUTHOR:
Nick Barlow is the founder and CEO of Beam Computer Forensics, LLC, which specializes in digital forensic collections, litigation support, and digital forensic analysis. The company is based out of Atlanta, GA.
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