by Conrad J. Jacoby, Esq.

Harvesting electronically stored information (“ESI”) using forensically sound collection techniques is a slow—sometimes painfully slow—process.  Clients and lawyers alike are strongly tempted to find alternate methods for collecting potentially relevant data, both to move discovery ahead more quickly and also to reduce the hourly charges incurred by collection teams.  After all, generally speaking, the vast majority of data collected in a forensic image isn’t relevant in any way to the underlying legal dispute and will be filtered out at the earliest stages of data analysis.  Why bother to collect all that information in the first place?

Critics of forensic collection have a point, of course, but their arguments also don’t address the reason that forensic collection continues to be recommended as a “gold standard” in ESI preservation and collection.  True, most ESI that is collected will bear little or no probative value to the legal dispute driving discovery.  However, litigants must be able to trust the accuracy and authenticity of those few documents that are fundamental to deciding the case.  And, unfortunately, because these documents are only identified over the extended course of discovery and pre-trial motions, it’s impossible to predict at collection time which documents will require special treatment.  Thus, litigants often need to use the same collection techniques to all materials so that critical metadata and authentication information will be available to validate these documents after their importance has been identified.

Fortunately, within federal court litigation, the mandatory meet and confer process required by Rule 26(f) offers an valuable opportunity for both producing and requesting counsel to proactively discuss evidence collection and authentication issues before they become an affirmative problem.  Depending on the nature of the dispute and the type of ESI that may be relevant, litigants may be able to greatly reduce the number of continuing authentication issues by answering two simple questions.

A. What ESI Can Be Exempted From Forensic Imaging?  

It’s unlikely that attorneys for either side of a case would ever agree to give up the ability to forensically examine and authenticate electronic evidence on a blanket basis.  However, litigants should be able to identify certain types of ESI that is either inherently reliable on its face or that is unlikely to face authenticity evidentiary challenges.  For example, lawyers should be able to agree that certain types of corporate information, such as press releases, SEC filings, and other public-facing documents do not require forensic collection measures.  Similarly, information stored in databases can only be forensically collected if the entire database is harvested.  Typically, though, only a small number of records in a large database may be relevant to the dispute.  Lawyers may be able to agree that certain reports will serve as valid evidence of key evidence even in the absence of perfect authentication.  These are only two of potentially many categories of digital information where authentication and admissibility can be stipulated.

B. What ESI Must Be Harvested Forensically? 

At the other end of the spectrum, parties in a legal dispute may agree that certain ESI is much more likely to contain potentially critical information that will need to be carefully validated.  Here, the meet and confer process can be used to identify materials for which there is no doubt that forensic collection will be required.  Most obviously, personal computers actively used by “key players” in the dispute are often examined for deleted files and other typically inaccessible ESI.  Litigants may also agree that specific digital files, such as technical drawings, research notebooks, or even certain subsets of e-mail messages will require special treatment.  Reaching agreement through the meet and confer process as to how to collect these materials greatly reduces the likelihood that these documents will be attacked on authentication grounds later in the case. 

Conclusion

Few if any meet and confer sessions will lead to agreement between litigants on all electronic discovery issues.  Opponents will continue to disagree about the level of authentication required for a large “gray area” of electronic evidence that is neither self-authenticating nor obviously in need of detailed authentication procedures.  However, chipping away at authentication issues, even modestly, can significantly reduce the number of admissibility disputes that can only be resolved through court intervention.  In addition, successful negotiation of at least some authentication issues sets the stage for further discussion—and perhaps agreement—on other logistical issues as the dispute becomes more fully developed.  That, in turn, may save a litigant much more money than the cost of conducting a forensic data collection.

About the Author

Conrad Jacoby is the founder of efficientEDD, a consultancy specializing in electronic discovery and litigation information management issues. A seasoned litigator as well as a technology consultant, Mr. Jacoby writes and speaks extensively on electronic discovery issues. He received his undergraduate degree, magna cum laude, from Yale University and received his law degree, cum laude, from the Georgetown University Law Center. He can be reached at [1] conrad@efficientEDD.com.