Cost-Containment Tips You Can Not Afford to Ignore The BackgroundYou are working on a small case, and you have a hunch that Electronically Stored Information (ESI) could be helpful in obtaining a just, speedy, and inexpensive conclusion to the matter. But, you have a perception that computer forensics and electronic discovery is just too costly, and is not “proportional” to the value of the matter you are engaged on. It just might be time to reconsider. Advances on technology, the bench’s increasing intolerance for botched electronic discovery, and pro-active computer forensics vendors that are bringing the costs of discovery back into the stratosphere are making the decision to utilize electronic discovery more compelling than ever…even for small cases.
Assume for a moment that you are representing a small manufacturing company who’s marketing director has just resigned, rather abruptly. It appears he is going to work for a direct competitor, according to employee reports. One colleague close to the matter is claiming the departing director has taken the company’s marketing plans and specific product road maps with him…to the competing firm.
Your client is concerned, but lacks the financial resources to perform a significant investigation, or to invest in serious litigation. However, if the departed marketing director does indeed take trade secrets related to your client’s marketing strategy to the larger competitor, the impact to your client’s competitive advantage could be catastrophic.
What should your client do?
In this case, the manufacturing company decided the stakes were simply too high. They tasked their attorneys to perform a computer forensics analysis of the laptop that the marketing director had used while in their employ. The result? It was discovered that the director had downloaded the company’s client list just days before his departure and had sent a number of “Google” emails (from his company computer) to a few clients announcing his departure and reminding them that he looked forward to serving them at his new firm.
In just a few hours the attorneys were armed with the “smoking gun” digital evidence they needed to thwart the employees ill-fated and dishonest plans for exploiting their client’s intellectual assets. Immediately following the computer forensics report, the company sent a letter to the employee’s new employer advising them of the probability of “inevitable disclosure” of trade secrets. This notice had a chilling effect on the new employer, and resulted in a settlement that prevented the departing marketing director from calling on the company’s clients for a period of 24 months.
The cost of this computer forensics investigation? Less than $5,000. The value of the outcome for the law firm? Priceless.
1. Computer Forensics and Electronic Discovery Solutions are available for every Budget. Know this, and do not let preconceived notions of the costs of Electronic Discovery cause you to make bad decisions about being a “zealous advocate” of finding the digital truth behind the matter. Highly professional electronic discovery firms can help you find solutions that will be an intelligent balance of your your client’s risks and resources.
2. Ignore Digital Evidence at Your Own Peril.
“The requirements and basic techniques of e-discovery could mean the difference between winning your client’s case or facing a malpractice action for botched e-discovery”
– American Bar Association. “E-Discovery for Small Cases” Continuing Legal Education Presentation. July 15, 2010.The downside to not pursuing a defensible electronic discovery action plan can be ugly. Sanctions, adverse inferences and judgments are lurking for the litigator that does not pursue the digital evidence that can help his client win.
3. Digital Evidence is Everywhere. Social Networking sites like “Facebook” , text messaging, and “cloud computing” services are creating a rich environment for the sophisticated litigator. Will your clients forgive you if you neglect this potentially critical source of discoverable electronic evidence that could be important to your case? The duty to investigate requires examining available ESI.
4. Inexpensive Tech Tools are Available. Some very small cases just do not have sufficient value to justify hiring outside computer forensics experts. In those cases, a number of good software tools are available to help. “DT Search”, “Ghost”, and “Snag it”, are just a few. But before you “do it yourself”, consider consulting with a professional to get a little up-front advice that will help you avoid some common pitfalls.
5. Knowledge is Power! Not sure where to start? Get some good advice. Don’t get caught by surprise when your opponent requests that you “meet and confer” to discuss the electronic discovery issues related to a new case. Find a “tech-savvy” person in your firm that can become the “e-Discovery Liaison” on all things digital. Or, hire a trusted computer forensics professional to help you navigate these emerging discovery trends. But remember, getting help should not break the bank.
“You either have to learn it or find someone who can help you. If you don’t understand electronic discovery you can not provide competent representation to your client. This is unethical, and as a judge I am obligated to report this to the attorney disciplinary board.”
– Judge David J. Waxse. U.S. District Court for the District of Kansas in his comments at an industry Webinar on electronic discovery on July 15, 2010.2