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This is the first in a series of posts featuring Law Professor Michael Babbage's musings regarding eDiscovery and Digital Evidence.
Title: The New World of Digital Information
A future lawyer’s fate was in Professor Michael Babbage’s hands as his red grading pen methodically went through a third-year student’s final exam. He looked it over word-by-word to see if his student was able to identify the issue, spot the rule of law, provide analysis and make a convincing conclusion in his electronic discovery class.
“Ahh . . . Mister Smith,” cried Professor Babbage to an empty office. “It looks like you were able to sneak a passing grade by ‘eThinker’ Babbage.”
The old professor had earned the nickname “eThinker” among the faculty based on his ability to teach about the legal and technological discovery issues (eDiscovery) in the in the new changing face of litigation - the fast-paced digital world. Babbage hopes his students leave his class understanding the many eDiscovery issues including preservation, spoliation, admissibility, privacy and how to advise clients regarding questions of privilege waiver.
Babbage had been on the law school’s faculty for 34 years. He had watched the world of law change not from the top of an ivory tower, but while teaching and practicing law in the summer. He’d pick up a case or two through the county’s free legal aid service to help small-business owners who were undergoing litigation with an emphasis on electronically stored information (ESI).
As the professor picked up the stack of exams to head out of his office for the semester his cell phone started to ring in his leather messenger bag. Babbage stumbled to get to the phone in time, and was able to catch it on the last ring before it went to voicemail.
“Babbage here,” he shouted into the phone. There was a long pause.
“Professor…you’re probably not going to know me,” said the voice on the other end of the call. “My name is Scooter Barnes.”
“I know exactly who you are,” said Professor Babbage with a grin. “You were in my first torts class. That’s been 34 years ago now.”
“Yes, that’s me,” said his old student.
“If my memory serves me right, I was blessed by your presence in my discovery class as well.”
“Well that’s kind of why I’m calling you tonight. My firm has put me in charge of tracking our opponents’ digital footprints,” said Barnes. “I haven’t been involved in electronic discovery before, and I could use some help.”
Babbage put down his bag and started to take his old student on a journey into the world of electronically stored information. It’s what he explains to his students on day one -- that tracking digital footprints is the new normal for lawyers around the world. The process of discovering, producing, and presenting electronically stored information has changed the way law is practiced virtually overnight. This new discovery process, known as “electronic discovery” or eDiscovery, also creates new legal and ethical implications. It’s crucial that lawyers know where and how to look for the “smoking gun” in ESI early enough to plan an effective, smart and winning strategy.
What troubled the Professor was that in today’s business world, it’s estimated that 97 percent of information is created electronically, while 60 percent of corporate communications never appear in printed form. How could any practitioner adequately represent his client or discover ESI if he did not have an intimate knowledge of ESI?
He knew that in order to find that digital data, including metadata, legal practitioners must search for digital pieces of information saved deep inside hard drives, removable storage media, and other electronic storage media.
“You’re probably calling me on a smart phone?” asked Babbage. “That’s the new starting point for a lot of discovery cases. Think small . . . like a cell phone that could send email, a jump drive or other portable storage device that holds information or documents when you are looking for metadata for a case,” he began to explain to his former student.
Whether you’re sitting in the front row or in the back of class, Babbage tries to leave his students with the knowledge that the discovery request is shaped by the requesting party’s knowledge of the responding party’s internal computer systems or portable communication devices. The right approach can avoid unnecessary confusion and conflict regarding what is being asked for, and may enable the parties to resolve areas of disagreement.
It’s the million-dollar question that Babbage would ask his students: How exactly should you ask for the digital information once you know how it is stored? The simple answer is that discovery materials should be obtained in an electronic native file or similar format in order to extract metadata that is contained in all computer files. But there’s a lot more to uncovering and finding the information your client demands and the case requires.
It’s also crucial to understand where the opposing party stores their information in order to find the documents you need. The fact-finding process requires you to focus on uncovering or disclosing electronic messaging systems, Internet usage, word processing revisions, metadata, and other electronic information relevant to your case. Think about how electronic information is stored internally, and then work your way out to larger data storage servers, possibly kept off-site on a cloud system, to help you gather information for the case.
“Mr. Barnes…are you still there?” Professor Babbage asked, after he’d been talking to his former student for a while. “It may seem overwhelming what I’ve told you. But in order to find the electronically stored information, you must think, ask and uncover how and where the company stores their data first.”
“So once I have figured that out, then what?” asked the former student.
“Figure that out, and call Old Babbage back,” the Professor ‘eThinker’ said. “I’ll walk you through what to do next. Remember…think small first. Learn how the firm, company or individual stores data first before casting a bigger net out to find the actual data you require.”
He hung up the phone, happy that Scooter Barnes had remembered him when trying to navigate the new legal landscape before him, and looking forward to future conversations with his former student.
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