Finding data unseen: Company creates its niche in e-discovery

By Jo Mathis Legal News A Detroit area insurance rep working for an Omaha firm started his own company using material from his current employer, then tried to sell his services to his employer's current customers. He deleted the evidence from his computers -- or so he thought. Computing Source of Southfield seized computers from the man's office and home, as well as his laptop and thumb drive to show the linkage between the two companies. Busted. "We'll get every last drop of electronic evidence," is the promise Computing Source president Mark St. Peter gives his clients, including that Omaha firm which received a favorable settlement. Some people don't realize that when a computer file is deleted, the operating system deletes the pointers that tell the computer where the file is and marks the space as available to overwrite. But the computer doesn't actually delete the data, which can usually be recovered. "When we take a computer and process it, it processes not only the data you can see, but the data you can't see," said St. Peter, a computer forensic expert who specializes in e-discovery for litigation. "In essence, we can get every bit of data that's on the hard drive, or laptop, or PDA, or whatever device we're processing for you." St. Peter , 48, of Royal Oak, has worked in the computer field for 29 years, eight of which has been specifically with electronic discovery and computer forensics in the legal area. He developed that niche market when he realized few of his competitors serviced the litigation needs of lawyers The Computing Source staff of 14 works with both plaintiffs' and defendants' legal teams as well as acting as an impartial third-party expert in both civil and criminal cases. Services include electronic discovery, computer forensics, data preservation, expert witness testimony, scanning and imaging, litigation support, and document review. "Electronic discovery -- helping attorneys transport electronic information from Point A to Point B -- is by far the biggest part of our business," he said. They can decipher magnet tapes, cell phones, flash drives, hard drives, floppy disks, PDA, and just about anything else, St. Peter said. "In today's litigation, very little is about paper anymore," he said, noting that some studies show that more than 95 percent of information now is never set to paper. St. Peter has learned a lot about court proceedings and digital case law since specializing in services for attorneys. Especially intriguing, he said, is the whole topic of spoliation, the intentional or negligent withholding, hiding, altering or destroying evidence relevant to a legal proceeding. One of his favorite cases took nearly five years, and involved the Japanese manufacturer of a thread that was used to weave a fabric used by Second Chance Body Armor of Michigan to make bullet-proof vests. Lawsuits were filed against Second Chance on behalf of vest buyers in several states, claiming that the vests deteriorated in heat and humidity. "It was a very challenging case, which is why it was one of my favorites," he said of the case, which settled out of court. "We had to match up Japanese documents with their English counterparts, making sure the database kept the relationship in tact." He's had to teach attorneys a thing or two, also, especially when it comes to allowing adequate time for data-retrieval. His business, which ebs and flows with the cycle of litigation, has been good, he said. "It's good to have a niche," St. Peter noted. -------------- E-discovery tips for attorneys Start ASAP. Gathering, processing, searching and analyzing documents during e-discovery can be a time-consuming process. Attorneys should seek to involve an e-discovery professional on the front end. It can be a tricky predicament when there is more information to review than the allowed time. Hire an e-discovery expert. While your client's IT staff may be very qualified and is certainly an excellent source of information as to the whereabouts of electronic records, they may not be versed in the legal aspects associated with gathering and searching electronic documents during litigation. This type of specialized knowledge that an electronic discovery expert brings will become especially important in the event that you are required to defend your document collection protocol. IT infrastructure is key. Understand how your client's computer system works and where their documents are stored. Documents can reside in multiple locations. Involve your client's IT staff and an expert in the electronic discovery process to efficiently and comprehensively locate all sources of relevant documents. Reach agreement with your adversary. It is important in both large and small cases to seek agreement with your opponent as to what format e-discovery will be exchanged in, including the specifics such as which metadata fields will be exchanged. A mutual understanding from the onset can avoid costly consequences in the end. If you cannot reach agreement, seek the guidance of the court. While a "meet and confer" is mandatory in Federal cases, it is just as important in other cases. Time is of the essence. Many company's backup systems are designed for disaster recovery only and not for record retention. This means that backup media are rotated far quicker than in traditional backup schemas. If backup tapes are even remotely likely to be involved in your document production, you need to communicate with your client quickly to avoid the inadvertent overwriting of what may be key pieces of evidence. Understand the costs. E-discovery costs can be managed efficiently, but can also add up quickly if care is not taken in the planning and execution of your collection and search. Having to re-do a collection because the first attempt was ill-planned is a prime example of unnecessary cost. Discuss with your vendor to establish proper cost reporting milestones appropriate to your particular situation. Identify all of the custodians. Too often parties in a lawsuit gravitate to just the "key players." During The Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of America Securities, 685 F. Supp. 2d 456, 471 (2010), Judge Shira Scheindlin wrote: "[T]he failure to obtain records from all those employees who had any involvement with the issues raised in the litigation or anticipated litigation, as opposed to just the key players, could constitute negligence." Failure to identify the appropriate custodians or to agree with your opponent as to which custodians will be searched could lead to expensive penalties and sanctions. Published: Mon, Jul 4, 2011

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