In the legal arena, the “burden of proof” took on a whole new meaning when Electronically Stored Information (ESI) became the cornerstone of our daily lives, creating mountains of evidence as never before. In the beginning, ESI was easy to deal with, storage capacity was very limited, not to mention expensive, and inter-connectivity was fraught with enough problems that only the technologically savvy dared to venture into the new digital frontier.
But, that was then, and this is now! ESI is everywhere you turn and involved in every facet of our daily lives. Whether someone is eight or eighty, a CEO or a student, a scientist or a soccer mom, it is a virtual certainty they are leaving digital footprints behind. Today, this is where the answers we seek are normally found, all but obscured in a vast digital landscape. Today, cases are made only after grueling hours spent connecting the dots. Electronic Discovery (E-Discovery) will often decide whether the outcome of your case is a success or a failure.
To put the burdens of E-Discovery into perspective, an average 100 gigabyte drive in someone’s laptop can contain as much information as you would find in a full bookshelf – a full bookshelf over 10 football fields long! Add to that business networks, cell phones, digital cameras, PDAs and third party information like transaction records and phone records and it can quickly become overwhelming. The burden of sifting through the minutia, finding the relevant evidence and then pulling it all together so you can actually present the right evidence in an accepted, practical and coherent manner is the Herculean task expected of you – by your clients, demanded by the courts, and required by the standards of the profession.
As if the sheer volume of the task was not enough, there are two other huge obstacles to face, the sometimes inconsistent interpretations of precedents dealing with E-discovery, and perhaps the most ferocious of all – COST!
While local courts, District courts and Federal courts can differ slightly in their interpretations of E-Discovery rules, cases and decisions like the five Zubulake v. UBS Warburg opinions have set the tone and framework that influences the thinking and decision making pertaining to ESI and E-discovery on every level. In a nutshell, if a “trigger event” has occurred and someone faces the possibility of litigation, all ESI from any key players involved must be preserved and held. Anything less can be grounds for sanction. As Federal district court judge Shira Scheindlin, the judge in the Zubulake line of cases wrote, “a court may apply sanctions when a litigant wrongfully destroys, alters, or loses ESI — and thus “spoliates” that evidence.” Sanctions can include requiring additional discovery, a monetary award to the innocent party, imposing a fine on the litigant, issuing an adverse inference charge to the jury, excluding certain evidence at trial, or terminating the case with a default judgment or dismissal. In other words, all bad and all costly.
The good news is, with preparation and forward thinking, the pitfalls of E-Discovery can be largely avoided and costs can be cut substantially. The key is being prepared for the storm before it hits. Otherwise it’s like being in the path of a category 5 hurricane with no insurance on your home. What would have cost you comparatively little up front and given you peace of mind, will end up costing exponentially more in both dollars, and stress … A LOT MORE!. In truth, you may never be able to recover from the damage once it’s done, courts are usually very unforgiving places that way. Having an ESI Discovery/Management plan already in place is absolutely crucial and Global Digital Forensics has the solutions and expertise that can help you every step of the way to weather the storm.
The fact is, the rules of E-Discovery can be dizzying and what you don’t know, or don’t plan for, will just continue raising the financial stake you’ll be laying on the table. For instance, the federal law on electronic discovery states that the party producing legitimately requested discovery bears the cost of the production. The simple translation is that a party lives with the storage choices it made. If the discovery is contained in an antiquated, difficult to reproduce format, the producing party is on the hook for the cost of production. We know the ins-and-outs, we know how to get your data off those old tape backups and we can help you make the right storage decisions going forward.
Another example of what you’re up against can be taken from the New York courts. They found, consistently (e.g. Etzion vs Etzion), that if production of ESI results in considerable expense, the party requesting the discovery bears the costs associated with this production. Global Digital Forensics hasn’t just been around this block, we’ve taken up residence here. We know what formats are the easiest to produce, are the most accepted and how to avoid the numerous traps commonly be found along the way. We will have you prepared BEFORE litigation. The minimal up-front cost is nothing compared to doing it under a court order or on a tight discovery schedule By enlisting our help today, Global Digital Forensics can help turn that rough voyage through the hurricane into a smooth sailing trip, allowing you to land successfully at your destination.
Now is the time to give us a call !!! You may only have everything to lose otherwise.
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