What exactly is electronic discovery?
Electronic discovery is the discovery of electronic documents, such as email, word processing documents, spreadsheets, databases, and anything else that can be stored on a computer. Electronic discovery is hot issue in the legal community because as opposed to copying electronic documents onto a disk to give to the other side, certain procedures must be followed to ensure that electronic evidence does not change during the course of litigation, to allow electronic evidence to be easily tracked, and to ensure that all of the underlying computer information of a document, called metadata, is provided to the other side.
Then what is critical electronic discovery?
Critical electronic discovery is a term we coined. In a nutshell, it is the practice of analyzing electronic document productions to verify everything is as it should be. It’s not as simple as simply running some quality control checks, though. Without access to the underlying source computer files, conducting quality control procedures to check an electronic document production can be extremely difficult. So, we developed methods to test the integrity of an electronic document production without the underlying source computer files. These methods can uncover flaws within an electronic document production, such as withholding key evidence, fragmenting and scrambling documents, deliberately duplicating documents, burying key documents, altering documents, fabricating documents, and spoliation. Many of our critical electronic discovery methods are patent pending.
I’m in the middle of a lawsuit, and the other side produced a ton of electronic documents to us. Can Hutcherson Sbaiti LLP analyze the electronic document production to see if there is misconduct?
Possibly. It honestly depends on whether you have the right metadata for the electronic documents. Many lawyers refuse to produce metadata. Unfortunately for them, the rules of civil procedure and recent court precedent are not on their side. Give us a call and we’ll see what we can do to help.
Can you guarantee that you’ll detect and prove all occurrences of discovery misconduct?
Unfortunately, no. Our critical electronic discovery methods rely on electronic evidence of misconduct, and sometimes that evidence just isn’t there. We know what to look for and where to look to find the evidence, and we’ll certainly do our best. But, like everything else in life, there are no guarantees.
Aren’t your critical electronic discovery methods unfair?
No. In fact, they are designed to correct unfairness, namely discovery misconduct. We don’t use critical electronic discovery as a weapon. Rather, it is used as a defense to make sure that our clients receive all the evidence they are entitled to. Further, our practice is not to file discovery sanctions in every case where we find electronic discovery problems. Electronic discovery is still a new industry, and even we run into issues of our own every now and then. Mistakes will happen. What really matters is what you do to remedy those mistakes.
Why do you offer your critical electronic discovery services as a law firm and not as a consulting company?
We do both. But, to provide you with a better answer, the truth is that we developed our critical electronic discovery methods out of necessity while in the trenches of major litigation. It’s hard to figure out what problems persist in electronic discovery unless you are the one directly affected by it—i.e., the lawyer whose job is to review 500,000 pages of electronic documents searching for evidence. On top of that, it took a lawyer to ask the question, “How do I use the problems of the other side’s document production as an advantage in litigation?” We continue to operate as a law firm because separating our legal services from our technical services would leave our clients with little value when it comes to electronic discovery.