I can recall how I was first contacted by a lawyer regarding deleted emails. Are you able to find messages which were deleted several months ago? they asked. Their voices were doubtful. Back then, I wasn’t sure myself.
That was twelve years ago. Today I assist businesses in gathering digital evidence on a daily basis. The process has changed. The tools got better. However, one thing remained unchanged, people panic when they hear the words “litigation hold”.
What Is Digital Evidence?
Any information in electronic devices is digital evidence. Imagine emails, text messages, photos, documents or web browsing history. The law is to use this evidence as much as paper documents. The catch? You must know how to do it.
This lesson came at a great price to me. One client lost a case because we could not establish the authenticity of an email. The opposing attorney made enquiries about our collection practices. We had the smoking gun but it was thrown out. The error cost my client 1.3 million.
E-Discovery: The Search for Digital Truth
E-discovery refers to the discovery and gathering of electronic information in case of litigation. It sounds simple. It’s not.
Essential Tools You Need
Document Review Platforms
The market is dominated by Relativity. It’s powerful but expensive. Other options such as Logikcull or Disco are usually selected by small firms. I’ve used all three. Each has strengths.
Relativity can cope with huge quantities of data. We completed 847,000 documents last month and took only two days to do it. But the learning curve is high. New users struggle for weeks.
Logikcull is easier to learn. It takes hours and not days to begin reviewing documents. The downside? Restricted capabilities of advanced searches.
Collection Tools
The collection of mobile devices should have their own software. The gold standard is Cellebrite UFED. Police use it. Then so do corporate investigators.
FTK Imager makes bit-to-bit copies of hard drives in computers. It’s free and reliable. My copy has never been rejected by courts.
Cloud Data Collection
This is where the matters become tricky. Office 365, Google Workspace, Slack – on all platforms, there are various ways of export. There are those that need legal holds. Others are letting one download everything at once.
Microsoft Purview (previously, Advanced eDiscovery) is Office 365. It is convenient whenever your company is on Microsoft products. But it’s not cheap. Enterprise licenses begin with 5 dollars monthly.
Best Practices That Actually Work
Start With Legal Holds
Issue notice of hold at once. Don’t wait. I have seen cases that have been lost due to deletion of evidence in cases of delays.
Make the notice clear. Use simple language. Give instructions on what really to save. Include examples.
Document Everything
Create a collection log. Write down what you collected, when and how. Courts are fond of particulars. Contradictory attorneys are a nightmare to lapses in your time.
One judge informed me that your documentation was so good that I did not have to listen to testimony about how you did it. That’s the gold standard.
Validate Your Process
Test your collection procedures. Can you find known documents? Do searches work correctly? I perform validation procedures on each new tool.
A year ago we found a search bug that missed 12 percent of relevant emails. Our vendor corrected it, however, after we demonstrated that there was a problem.
Common Mistakes to Avoid
Waiting Too Long
Evidence disappears fast. Employees delete files. Old data is automatically purged. Begin preservation hours of litigation threats.
Ignoring Mobile Devices
Individuals are now using phones to do business. Potential evidence includes text messages, WhatsApp, Signal it is all potential evidence. Forget not to gather mobile information.
Poor Communication
Discuss the procedure with your team. IT personnel must be familiar with the law. Lawyers must understand technical boundaries. Close that divide or you will suffer in the future.
The Future Looks Different
E-Discovery is transforming with artificial intelligence. AI has the ability to scan through documents quicker than humans. It finds patterns we miss. But it’s not perfect.
I apply AI into screening of initial documents now. It cuts review time by 60%. Still I have humans verify significant findings. Trust but verify.
Getting Started Today
Select the tools to suit your case size and budget. Start simple. A minimal system such as the Logikcull is less expensive than employing contract attorneys to review documents. Unlock Legal Efficiency: AI Drafting & Research Tools
Train your team. Poor training is costly. Free online courses are available in the majority of vendors.
Establish contacts with technical specialists. Complex collections will require you to be assisted. Locate a person who speaks plain English on technology.
Electronic evidence is here to stay. Take these fundamentals now and you will cope better in the future. The tools will change. The principles won’t.
