I have a eerie feeling that charlatan techies of e-discovery are the pet rocks of 2011. These e-discovery keyboard jockeys are overcharging for their services, knowing that the legal market is scrambling to bring about fair handling of digital evidence and the prevention of spoliation in circumstances where documents aren't a stack of papers but "a block of arbitrary information, or resource for storing information, which is available to a computer program and is usually based on some kind of durable storage" http://en.wikipedia.org/wiki/Computer_file
The irony is that the digitization of documents should render it cheaper, not more expensive to produce computer files in discovery. A litigant no longer has to make "hard copies" of documents he/she wants to review. Armed with search terms, a party seeking discovery can search through thousands of documents in seconds as opposed to hours or even days. Copying the documents can be performed electronically with ease without crumpling or damaging the original files.
So why is e-discovery so expensive? In my opinion, it is because of a several factors. First, the courts are just catching up to understanding the technology of digital files, while attempting to superimpose old rules, meant for paper, onto e-discovery. Second, well heeled litigants are taking advantage of the opportunities to bleed their cash strapped opponents by charging him/her for digital scanning, storage and other services that can be performed cost effectively via collaboration between the litigants.
E-discovery experts are charging outrageous fees to sort through digitized data on hard drives and on corporate servers. These profit-minded experts frequently charge by the gigabyte, knowing that on a hard drive there are program files, movies and other large sections of the hard drive that do not need searched at all. Next, the e-experts charge expensive fees for storing the digital data produced in discovery.
The charges of these e-experts are out of line with the economies offered by technology. Storage is cheap. Litigants should ask the court to approve economical storage options that preserve the integrity of the digitized evidence being preserved. The best time to do this is at the inception of a case when e-discovery is negotiated between the parties and approved by the court.
Of course, each party should have its own e-expert. In choosing an e-expert, a party should be careful to know what they need. Is a forensic expert needed? Or is just an e-warehouse expert needed?
An e-warehouse expert knows how to secure the digital evidence from the opposing side, either by copying it via imaging or agreeing to a protocol to be followed by the other side for copying and/or imaging. The copies and/or images of the digital universe of information being preserved can be inexpensively stored. A "master image" of the imaged data can be stored with a third party or in the case of a non-party, with that non-party. This way, there is always a pristine version of the "original digital universe" of e-evidence that is relevant to the case. Preservation of a "master copy" of the "original digital universe" should ensure the integrity of the digital evidence inexpensively. Digital warehousing of evidence should be cheaper than paper discovery and the storage of paper documents. Yet that is often not the case due to ignorance of the e-discovery consumer and the fact that some courts have yet to grasp basic concepts of the digital world.
An entirely different matter is when a litigant needs a forensic expert. There are plenty of charlatans parading around as forensic experts. Many of these so-called experts' knowledge does not extend beyond the user's manual of the computer program they use. The limitations of the software they use are their limitations. If the software program they are using does not have a way to detect untoward alteration of a digital document, these pseudo forensic experts are clueless when it comes to ascertaining the true integrity of a digital document.
True forensic experts are trained to design software programs to evaluate the integrity of the digital documents within a universe of computer files. These real experts are worth their weight in gold because they are capable of finding the needle in the digital haystack, that needle being a hidden code or a fragment of a file that is inconsistent with what the digital document purports to be.
In today's world of digital authentication of documents key documents are offered into evidence as "purporting to be" digital documents that have not been tampered with. A real forensic expert is able to ensure that these digital documents pass the necessary muster to be regarded as original documents, not defiled by the deceptive tactics of a desperate and/or unsavory litigant.
Unfortunately for lawyers and their clients, it is tough to sift through the resumes of would be forensic experts and find a true expert, one who understands the technology behind commercial forensic software. Good questions to ask a self professed computer expert are:
1. Where was he/she trained? GIAC at http://www.giac
2. What tools does he/she use? If a professed forensic expert only uses forensic tools out of a box, ask him/her what training he/she underwent to use the software. Keep in mind that forensic experts tied to a single software platform have limited vision and skills. They are shills of the software manufacturer.
3. What cases has the forensic expert worked on? In connection with those cases what forensic challenge was addressed and what was the outcome? Understanding the experience and results of a forensic expert is critically important. If possible, ask to review the transcribed testimony of the expert. There is no better insight into the expertise of a forensic expert than ascertaining whether the expert withered under cross examination or rendered opposing counsel feckless.
4. Judge for yourself whether the forensic expert will perform well on the witness stand. Is the expert capable of explaining complex technological concepts in layman's terms? Is the expert likable and does he/she appear trustworthy?
Do your homework when hiring a forensic expert. If you mount a forensic challenge to the authenticity/integrity of digital evidence or defend such a challenge, your case will rise and fall on the capabilities and ability of your expert to be communicative. If you come across a forensic expert that meets your expectations after being vetted, he/she is no digital storage jockey, whittling at a digital warehouse. A true forensic expert who can convince a court that spoliation or digital skullduggery occurred is likely worth the price being asked for his/her services.
In sum, don't over pay for digital downloading, imaging and storage. When it comes to hiring a digital gunslinger, a forensic expert, don't hire an ill trained, techie salesman who professes to know forensics when all he/she is is someone who buys his gun/weapon out of a box. That pseudo expert will be as valuable as a pet rock, which in 2011 is substantially less than the $3.98 it sold for in 1975.
Hire a forensic expert who is akin to a gunsmith, someone who in a technological sense knows how guns are made and can make and shoot his own gun at a hidden target. The price you pay such an real expert will be dictated by the amount at stake and the forensic issue that may be preventing your rightful recovery.
