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Many lawyers are missing opportunities in their investigations and litigations because they believe certain myths regarding computers.  Like all good myths, they contain a shred of truth, or at least once did.  Knowing what is wrong with these myths is one of the best ways of getting a great result for your client.

Myth #1 - Electronic Discovery Is Only Affordable in Big Cases

Not too long ago, inflexible mainframe systems held significant computer information.  Although personal computers were available, their operating systems were relatively simple and storage was expensive.  As a result, cost considerations limited data retention.

Today, practically everyone has a computer in his office (and at home), that is more powerful than what NASA used to put people on the moon.  Personal computer operating systems can effortlessly run multiple applications at the same time.  Software that allows one to run customized data searches and sorting are commonplace.  Disk storage is so cheap that no one worries about it. 

It should not surprise you that the cost worries you previously faced have changed.

Now, even cases of small and moderate size can require electronic discovery, and can cost-effectively do so.  When you are representing the less advantaged party, you need technology to level the playing field.  In the same way that David slew the giant Goliath with a slingshot, electronic discovery is the new weapon that will cost effectively get information not otherwise available.

This occurs because the computer is capable of searching massive amounts of data to highlight the "smoking gun".  While it is true that a computer will never replace a thinking human, the computer can search and sort data in minutes that would take a human days to review.  The human gets tired, makes clerical mistakes, and requires relatively high pay.  The computer eats a little electricity and will work all night without complaining.  In a small case, you cannot afford to leave this weapon behind.  

Myth #2 - We Get What We Need through Conventional Discovery

This also may have been true before, but times have changed.  Here's why:

• Paper discovery encompasses only what remains.  Electronic discovery includes what used to exist.  Most organizations will make a backup of all data at least once a day, and retain these for at least a month.  Because storage is so cheap, many data processing personnel will keep these backups for even longer, even when the formal systems call for the magnetic media to be recycled.   Simply put, your opponent's computers are keeping what the rest of the organization is throwing away.  By asking for electronic records and backup, you will get damaging emails and prior versions of key documents.  You will rarely obtain these items with only conventional discovery.

• Because some business systems are designed to be paperless, certain records no longer naturally occur in paper form.  If you insist on obtaining complete paper discovery of a system that was never intended to be printed, you will get a response that is not as helpful.  Specifically, you will likely get objections, an incomplete production, and/or a data dump that is difficult to review. 

• Certain types of wrongful conduct (for example, thefts of trade secrets) are conducted primarily with computers.  When this occurs, the only way of substantiating the wrongful conduct is through a forensic inspection of computer evidence.  Reliance on paper records in this arena will rarely be successful.

This raises an important change that most lawyers need to make in their discovery practices.  You should issue a document preservation letter as soon as you know a dispute exists.  Then, instead of starting with only form and contention interrogatories, issue a subpoena that seeks all relevant computer data, including backups.  If you wait, valuable information will be discarded by your opponent in their normal course of business. 

Myth #3 - The Other Side Will Never Give Us This Information

The rules of discovery are not materially different for electronic vs. paper discovery.  Therefore, whether this myth is true or not depends upon you, and not our legal rules.  If you are willing to insist on your opponent's production, there is no good reason not to get the electronic discovery.

In fact, electronic data should be easier to obtain, for the following reasons:

• Electronic data is cataloged in formal systems that are available to multiple persons within an enterprise.  Because of periodic backups, multiple copies exist.  Unlike a paper record that a dishonest person can secret away, it is difficult to surreptitiously and permanently discard an electronic record.

• There is little burden associated with electronic discovery.  The equivalent of entire rooms of paper can be copied in a matter of minutes, at practically no cost. 

• The primary objection to electronic data is relevance.  However, the same tools (discussed above) that allow one to search and sort records are regularly used to identify relevant records.

An important consideration is that your client will likely face a similar discovery request once you insist on obtaining electronic information.  If your client has significant electronic data, you should counsel them to ensure that their document retention policies are appropriate, and are being followed.        

Myth #4 - When Conducting an Internal Investigation, I Can Get What I Need from my Client's Technology Department

Unless specific steps are taken to preserve evidence BEFORE the investigation begins, you will have interesting accusations but no evidence.  This occurs because simple actions like turning on a computer and opening files will record that someone other than the suspect accessed (and thus may have altered) the information.

In addition, much of the evidence is not contained in regular files, but is instead stored in logs, registries, temporary files and unallocated storage that can be retrieved only with specialized training and software.  Unless your client's data processing professionals have such training and tools, the assistance you will be receiving is incomplete. 

The Fulcrum Advantage   

• Because of our experience in civil litigation, we know how to convert our methodology and conclusions into persuasive information for a judge and jury. 

• We are not just computer techies.  Our broader expertise allows us to (i) separate the important from the unimportant, and (ii) interpret results from the overall perspective of your dispute. 

• We use updated and sophisticated forensic software.  This is important because technology is constantly changing.

• By using a single service provider for related tasks, our work is more complete, better coordinated, and costs less. 

• Our work is of the highest caliber, yet we charge less than the larger firms.  You get "big firm" results at a "small firm" price.