Litigation Support

Technology impacts all aspects of modern life, transforming how people learn, work, and communicate. People today operate professionally and personally in a digital society, leaving a vast computer-generated footprint in their wake. Understanding these new potential sources of evidence is critically important to zealously advocate for clients.

Much in the way that email transformed the practice of law, new short-form and/or collaborative means of communication are dramatically impacting how practitioners identify and uncover key evidence. Understanding where to look, how to extract insight, and the legal or ethical considerations with each new source of evidence pose new challenges for practitioners.

Managing new data sources in ediscovery

Social, mobile, and app-based data produce a broad spectrum of digital files that may be relevant to civil matters. Simply looking in custodians’ emails, network shares, and documents stored on their PCs or laptops is likely not sufficient to capture all relevant information. Rather, legal practitioners must ask additional probing questions to determine which atypical data sources may be within the scope of relevancy.

Shadow IT, or the use of systems outside of the approval and purview of IT within an organization, is a major challenge facing enterprise today. Employees expect the same ease of use and functionality available in commercial grade tools for business activities. In the event there is a shortfall, employees often begin using tools without engaging with IT (up to 50% of the time according to one report). As such, the IT data map or general understanding of the tools employees use in an organization is unlikely to encompass all the technology employees are actually using.

Best practices

Here are some best practices to building a supercharged approach to managing new data sources:

A.       Identify investigative data

The first step to identifying likely relevant data today is to speak with the stakeholders early. Much like you would not have trusted the head of information governance or the CEO to tell you how everyone filed their communications back in the day, you cannot simply rely on a single IT person to map out the communication methodology across the organization. Ask senior and junior members of relevant business units or practice areas how they communicate in their team, which tools they engage with, and with what frequency. Atypical data types may not be relevant in every case, but you should level set early to ensure you are not missing out on highly relevant material.

B.       Prioritize and triangulate data

Prioritize data sources based upon how frequently key custodians use them, and understand that email may not be the first data source investigated. Use insights from each investigated data source to triangulate in on key periods of time, concepts, and data ranges to ensure that you are not boiling the ocean but rather taking a precise approach to mining for relevant information.

C.       Determine data export capability

Once a new data type is identified, it is important to understand the type of license (if any) the enterprise has, because certain levels of licensing provide only a limited data export. A second key consideration is which technology or technology service provider can best handle the data type employed by a given tool.

D.       Partner with providers that have specific expertise in the relevant data type

Tools like Slack and ephemeral messaging applications have a different data format than email. Standard documents, certain methods of extraction, and/or review platforms have limitations that can make a review substantially more challenging and costly. Understanding this on the front end is key. When in doubt, demand that a provider show examples of what the data will look like in the review tool before engaging.

E.       Find your data expert

Ensure that you, your client, or the service provider has a well-versed expert to help shepherd the process, to avoid pitfalls specific to the data type, and to ask the right questions as you navigate through this process. Understanding the risks and benefits of atypical data at the outset can avoid costly mistakes and decisions that may render the data unreviewable.

What does that mean for practitioners?

In the same way that both electronically stored information and email fundamentally changed the practice of law almost a decade and a half ago, new atypical data is fundamentally changing case development and discovery yet again.

Attorneys should seek to obtain a basic level of technological fluency, understand enough to spot issues with technical repercussions, and have a network of resources to address deeper technical questions.