The Legal Intelligencer Blog: Computer Forensics and E-Discovery: Recap from TLI Litigation Summit, Part III

Monday, November 12, 2012

Computer Forensics and E-Discovery: Recap from TLI Litigation Summit, Part III

By Gina F. Rubel
Special to the Legal

During the third CLE hour presented in September at The Legal Intelligencer’s first annual Litigation Summit in Philadelphia, panelists discussed computer forensics and e-discovery. They included Jeff Sassinsky of Sassinsky Data Services, Robert J. Genis of Sonin and Genis, Shawn Huston of MerlinOne, Michael Burkhardt of Morgan, Lewis & Bockius, and Melinda S. Sungenis of the TASA Group. Here is a summary of some of the main points from the program:

• Predictive coding, a process that uses algorithms to predict how human reviewers would code a document, can cut costs, is fast and relatively accurate. However, the cons of predictive coding include the risk that an error occurred when an attorney coded the “feeder set” could affect the outcome of the review. Predictive coding is also not reliable for reviewing documents for privilege.

• Authentication of screen captures of social media for e-discovery can be difficult. There are vendors that can do that for lawyers.

• Make sure vendor bills for e-discovery reports are well categorized for cost allocation requests related to litigation.

• Lawyers need to understand: advance research technology and methodology, case theories, key document content, claims and defenses for advanced e-discovery research results can be truly valuable.

• Lawyers need to have discussions with corporate management and a company’s IT director to understand backup retention of electronic files for e-discovery management.

• Lawyers need to understand that cloud information is just any information on the Internet including that which is stored in online email accounts such as Gmail and AOL, information stored in Google docs, and anything else that is stored online, and it all affects e-discovery.

• Metadata can help to validate or invalidate the authenticity of data and can corroborate or refute evidence in legal matters. Pinpoint Metadata Viewer is a free downloadable tool that can be used to review metadata.

• Forensic analysis can often recover and reconstruct deleted data on any computer device, including PDAs, tablets, etc. Deleted data retrieved for litigation is very usable.

• Electronically Stored Information (ESI) data comes from black boxes in autos, cellphones, PDAs, cameras, GPS devices, elevators, videotapes, hard drives, emails, etc. Proving authenticity of ESI, including social media captures, text messages, etc., is very difficult in litigation. As a result, it is important to design a plan for what you want the case outcome to be, understand ESI authentication costs, and the amount of time it will take for review.

Gina F. Rubel is the owner of Furia Rubel Communications, a strategic marketing and public relations agency with a niche in legal marketing. A former trial attorney, she is the author of Everyday Public Relations for Lawyers. Rubel and her agency have won many awards for legal communications, PR, media relations, website and graphic design, strategic planning, corporate philanthropy and leadership. She maintains a blog, is a contributor to National Law Review, The Legal Intelligencer Blog, AVVO Lawyernomics and The Huffington Post. You can find her on LinkedIn or follow her on Twitter. For more information, go to www.FuriaRubel.com.