|
|
|
 |
|
|
|
|
|
|
|
||
 |
 |
 |
 |
 |
 |
 |
|
Electronic Discovery
As in computer forensics, in the specialty of e-discovery the procedures followed previous to the actual litigation are paramount to the success or failure of the outcome. This begins with the preservation of the client's evidence in a manner that will be acceptable in court. All company policies and procedures must be analyzed as they will be relevant to how the court might interpret the actions after the fact.
Whether the client is the plaintiff or defendant, or whether the lawsuit is actual or potential, you must preserve a client's relevant electronic evidence as soon as that client "reasonably anticipates litigation." The new law does in fact hold an individual liable if they purposefully destroy potential evidence with knowledge of pending litigation. In this context, the client's electronic evidence is a pressing concern; the consequences of inaction can be detrimental to the outcome. In Mosaid Techs., Inc. v. Samsung Elecs., for instance, where a party failed to preserve relevant e-mail messages, the court awarded more than $500,000 in sanctions and an adverse jury instruction.
Whether you are asked to review a client's document retention policy or begin an investigation, there are standard procedures that should be followed. Before accessing the client's system, you should:
Familiarize yourself as to the policies, procedures, software, email storage, hardware both attached and USB devices, backup stategies, and document retention policies. Equally as important is to interview IT and employees related to the potential litigation.
By utilizing both interrogatories and then by conducting in-house interviews the following groups should be included:
As with the necessity of maintaining a chain of custody, these preliminary steps can in the long run save time and expense for all parties involved.
