Meet & Confer – The Meat & Potatoes of Digital Evidence

Mark St. Peter

By Mark St. Peter, CCE, CFE

There’s no denying we live in a digital world. According to EMC Corporation, the digital universe – including all of texts, emails, websites, the Internet, our computers and smartphones – is doubling in size every two years. It will multiply by 10 between 2013 and 2020, from 4.4 trillion gigabytes to 44 trillion gigabytes.

It’s no surprise, therefore, that the way legal professionals operate has drastically changed in the face of this digital shift. With far-reaching legal, technical and logistical implications, these changes have had enormous implications for attorneys and other legal professionals, particularly in the meet and confer process.

In 2006, the Federal Rules of Civil Procedure (FRCP) were changed to outline specific policies and procedures for the maintenance, preservation and discovery of electronically stored information (ESI). Specifically, Rule 26(f) addresses the meet and confer, a mandatory pretrial meeting between litigants. The statute requires both sides of a pending dispute to use the meet and confer to discuss the terms of evidence collection and maintenance, and to develop a proposed discovery plan to address the discovery, presentation and preservation of ESI. Around the country, a number of state courts are adopting similar policies based on the federal model.

With the meet and confer being such an important event that impacts the entire course of the case, it is crucial that attorneys are armed with the right facts and questions. Here are some key considerations to make as you head into your next meet and confer:

Have you contacted the professionals?
E-discovery and computer forensics experts have the experience and knowledge necessary to help you construct the best, most effective road map possible. They can help with everything from forensic imaging of hard drives and identification of lost data, to detailed analyses of Internet activity, recovery of critical files, and management of collected or produced electronic documents. To help you comply with your duties to preserve evidence and to avoid claims of spoliation, your ESI consultant can help identify which processes need to be suspended and why.

Who are the key players?
Consider all of the players involved, and try not to make assumptions about who is or is not important. The CEO’s emails may not be the only ones that need to be reviewed – you may also want to look into those of administrative assistants, record storage vendors, accountants and more.

What are the key events in the timeline?
Develop and agree upon a list of key dates before the meet and confer takes place, and ensure that everyone has a sophisticated understanding of the timeline. This helps establish what date filters need to be placed on data, so that you can avoid processing and searching information that is outside the relevant timeframe, thus saving time and money. You can also determine if the collection requirements will be part of one fixed date or a series of ongoing gatherings of data.

What ESI needs special attention due to exposure to alteration or destruction?
While all ESI is vulnerable, there are certain circumstances where the integrity of information can be especially precarious. Backup tapes are subject to disposal, individual computers are often reassigned to different employees, and email systems are frequently set up with automatic deletion. Use the meet and confer to structure ESI discovery to prioritize data preservation and recovery from those sources.

What collection methods are best suited to each type of ESI?
Different types of ESI call for different collection techniques, and the right technique can depend on factors such as whether or not the metadata needs to remain unchanged. Work closely with a digital evidence services provider to determine what collection methods are best suited to the circumstances of the case at hand.

Do you know the right technical questions to ask?
One of the challenges of ESI discovery is the way in which the unique technical challenges of digital evidence retrieval and management intersect with the complexities of digital case law. You need to know which questions to ask with regard to not only legal, but also technical details. Work with your digital evidence specialist to create a list of key questions like: How will the produced information be formatted? What specific metadata fields will be produced? Can the parties agree on a list of search keywords up front? How will produced ESI be tied to its corresponding request for production? What cross references will be provided?

The above checklist is by no means intended to be an all-encompassing resource; every meet and confer should have its own case-specific agenda. But for attorneys who wish to navigate the digital landscape of today’s world with confidence, and to head into every case with the assurance that they have all the relevant information they will need to make (or break!) their case, this list is a great place to start.

For more information, visit www.computingsource.com.