A recent article entitled, "Ten Ways to Torpedo Your Expert” by Dr. Joni Johnston (Here ) points out some of the many ways attorneys can inadvertently sabotage their experts. Although focused on mental health professionals, Dr. Johnston's article holds meaning for data discovery experts, as well. Torpedoing your expert can also take many forms, including putting the wrong "expert” forward, not informing the expert of everything they need to know, and even shooting yourself in the foot by relying on a biased or otherwise unqualified expert.
A data discovery expert is not simply a provider of technical retrieval services or data conversion services in support of data discovery—we'll call these "quasi-experts”. A data discovery expert is someone who has the experience, training, and knowledge to help formulate discovery strategy, provide expert testimony and motion support, ensure a defensible chain-of-custody, locate evidence caches, securely collect and effectively analyze digital data, and identify portions of data collections to load into litigation support databases. Credibility stemming from this type of experience is the cornerstone of an expert's foundation.
There are many types of bias. Some experts are biased toward plaintiff work, others defense. Assumptions such as "all major companies try to hide the ball...” or, "all plaintiffs' counsel are on a fishing expedition…” can have significant impact. For example, a biased plaintiffs' expert may insist upon a rushed deadline for a company to produce its documents. This opinion is then taken to the court in response to a motion to compel production and relied upon in establishing timetables. Further, because of previous delays, the court will not be happy if these timetables are not met and will readily impose sanctions against the defendant company for non-compliance.
The stage is now set for the inexperienced expert to find that he or she underestimated five-fold the volume of data and the cost to retrieve, review, and produce it. This is not to say that surprises will never happen. However, this is an all too common occurrence that in the end increases cost and is frustrating for both litigants and the court.
We have chosen to use the term "data discovery” rather than "computer discovery” or "electronic discovery” because computer discovery is today too narrow a construct and does not imply the discovery of other sources of digital data, including cell phones, PDA's, and voice mail, among others. Electronic discovery, on the other hand, has become almost exclusively associated with litigation support and its mission of organizing and converting data for review.
Worse, and perhaps most dangerous of all, is the expert or quasi-expert who holds a bias based on self-interest. This can take the form of opinions based on the likelihood of monetary gain, or opinions designed to directly or indirectly benefit a sister or subordinate company. Unfortunately, we have seen situations where the quasi-expert clearly hears the "ka-ching” of the register when it comes to data collection and review. This is particularly true when backup tapes are involved and the temptation is simply to collect, convert, and review all data from dozens if not hundreds of tapes.
In the case of bias-by-association, you should choose an expert who takes special care to fully vet their projects before an engagement to ensure there are no conflicts of interest. It is a good idea also to seek out an expert who works for both plaintiff and defense counsel, and serves as a court-appointed neutral.
Credentials, experience, integrity, and training—these are the hallmarks of a good data discovery expert. As with many businesses, it's easy to hang a shingle. It's even easier to get name recognition and an imprimatur of credibility when significant venture capital factors into the picture of a new business. Unlike many new businesses, however, the consequences of a flawed or inadequate service can go well beyond the value of the product itself, and affect both the liability and perhaps the survival of the client.
In the case of data discovery, all it takes is one failed attempt to maintain a chain-of-custody to lose a motion or succumb to summary judgment. In a recent case, for example, an expert found highly incriminating and irrefutable evidence on a suspect computer. In response, the defendant demanded a deposition of the expert who performed the examination in an attempt to attack the process of collection and analysis. Had they been successful, the defendant would have gotten off on a technicality, much like not having Miranda rights read in a criminal arrest. They were not successful, however, and the expert's procedures withstood scrutiny.
The time a data discovery expert requires is difficult to predict in advance. It is driven by the need to identify, collect, and examine hundreds of thousands—if not millions—of documents, email, databases, and such. Not only does data need to be collected, but it must also be restored to its original environment in some cases, and filtered in all cases. This is a cost issue, but also a significant timing issue. Too often, clients approach a discovery expert as discovery deadlines loom and costs have escalated. A data discovery expert can, however, be of special assistance early in a case, helping to formulate discovery strategy as it pertains to digital data, as well as heading off costly decisions regarding data collection, preservation, and review.
It may be that a delay in consulting an expert is justifiable when the amount at issue is low and/or there is a high likelihood of settlement. Delays can be counterproductive, however. Good use of a qualified data discovery expert early in the process will nearly always save money and can sometimes effect settlement by helping parties understand the strengths and weaknesses of their position early in the litigation.
Another reason for early engagement is that specialized expertise is sometimes needed from more than one expert. For example, a valuation expert may need to rely on data identified and collected by a data discovery expert. If the groundwork is not done appropriately at the beginning (i.e., identification and collection), then the valuation expert may be at a disadvantage in their tasks.
Finally, failure to engage a data discovery expert early enough in the case can irreparably harm your chances at success. Some favorite scenarios include:
"We [the lawyers] have looked at the computer(s) and can't find anything, and we've had our IT personnel take a look too…. can you find anything?” Here, so much damage has been done to the digital evidence that it is often unlikely that useful data may be found, not to mention challenges to chain-of-custody and procedure.
"We started this case three years ago and we're ready now to start doing e-discovery.” Unless a pretty good preservation protocol was worked out early on, it's very likely that much of the useful information has been overwritten, lost, or simply forgotten. Having a good data discovery plan early in the case is as important as planning overall strategies, and is in some ways even more critical than ever before, given the volatility of electronic data.
"We collected the email right away, and now [one year later] we are ready to start looking for the rest of the data.” >Here again, it is very possible that too much time has passed and valuable data is gone. Turning computers on and off, recycling through leasing companies, and backup tape retention schedules all cause data to disappear over time.
Your expert can easily be ambushed or discredited by basing their opinions on partial information. This is particularly true when it comes to the technical issues associated with discovery of digital data. What may seem unimportant to the layperson can be the detail that makes or breaks the strength of a computer expert's testimony. An example of this may be found in the minefield of undisclosed data.
Of particular importance is a thorough understanding of the background of discovery in the case and technical points that may have been brought out previously. The data discovery expert must have access to and an understanding of written discovery responses and deposition testimony. Without this, there is a risk that your expert will base an opinion on something that was successfully refuted or contradicted by other testimony or by the facts. If this baseless opinion is a lynchpin of your case, your money has not been well-spent and the expert's credibility is called into question for this and future cases.
This is often a case of being "penny wise and pound foolish.” Using your expert early and often results in cost savings and goodwill in the end. Using your expert to help plan appropriate interrogatories and other electronic discovery strategies will focus your requests and avoid many of the hot buttons that lead to discovery motion practice an expensive endeavor. Good examples of these hot buttons include asking for "any and all” electronic data, and insisting on recovery and review of entire collections of backup tapes. Attempts to use a data discovery expert only when "needed” can cause you to overlook important things like unsuspected data sources, or to commit to procedures and timetables that are impractical or impossible—not good if you want to maintain the court's favor and the value of your client's pocketbook.
Though it may seem counterintuitive, limiting early consultation with your data discovery expert can easily lead to missed opportunities. Imagine a doctor's visit where you only have your pulse checked and not your blood pressure. The most successful relationships are those where the expert is viewed as a partner, working with you to advise and guide this highly technical aspect of your case. Limiting the scope of their involvement will weaken the expert's impact and possibly your case.
All litigators have a desired outcome in mind at least we hope so! However, putting words into your data discovery expert's mouth is a disservice to both your expert and your case. Any deviation by your expert from undisputed technical information will almost surely be discovered. For example, you would not ask your expert to state that a tape drive could not accept a certain type of media, when the manufacturer's spec sheet says it can. Though at times it may be hard to hear what you don't want to hear, listen carefully to your expert and understand what they can or can't say.
As computer systems become more complex, you may also need more than one data discovery expert to support your case. Asking a data discovery expert who specializes in Windows-based systems to provide an opinion on the functionality of Unix-based source code may stretch them beyond their skills and ultimately call into question all of their testimony. It would be better here to accept that your expert may not have the depth required and ask them for a referral for this aspect of the case.
The best defense is a good offense, they say. There is some room for opinion in the world of data discovery, as it can be as much art as science. Be sure that your expert is wise and experienced enough to know the difference: what can stand as fact and what can only be reasoned judgment. Here's where training and experience can make or break your expert's testimony.
Don't follow the example of the expert who based their entire report and discovery plan to collect and image numerous computers on the erroneous assumption that the computers they sought were the same ones that were currently in use. As it turned out, none of the data sought by the expert had ever been on a PC, since during the relevant time period the PC's (now gone) did not have hard drives! They were merely dumb terminals attached to a network server. As a consequence, there was no reason to search the existing computers at all. Insist that your expert document their assumptions and find some objective support for their opinions.
We understand that it can be tempting to allow a technical witness to go it alone, especially if the attorney has little understanding of computers. However, when it comes to data discovery, it is even more important that attorneys prepare their witnesses carefully, making a strong effort to understand fully all the components of their testimony. Without an ability to object to or re-direct the examination, it may be impossible to clarify points or refute the other side's position.
A large part of a data discovery expert's role is to help the court understand terms and concepts that are used to support their opinions. Most people have a colloquial understanding of such computer terms as hard drive, image, and file. However, it can be this colloquial understanding that gets in the way of true understanding when faced with the facts in a particular case.
The judge who rules based on her own experience with data backups, the home user (juror) who has no idea what happens to files when they are "deleted,” and the attorney whose most technical accomplishment is mastery of her Blackberry, are all handicapped by their lack of experience and knowledge. Data discovery can involve obscure terms or concepts, making it crucial to develop a common understanding with your expert regarding definitions and uses of these terms. If you don't understand what your expert is saying, it's likely the judge or jury won't understand either.
Help your computer discovery expert understand the issues in the case and what you hope their testimony will show. This is not to say you should control your expert's opinion (see above), but rather give them all the information about the case that they need to form well-founded opinions. After you have fully explained the case, listen to their counsel as to what you should or should not look for and what you may or may not find. Base your decisions upon informed consent, particularly if your expert has explained the probability of locating (or not locating) responsive evidence.
It's hard to say how many times we have heard, "I don't know anything about computers,” or, "This is all beyond me.” When true, it makes everyone's job harder. Try to develop a common understanding of the nomenclature of computers, and ideally a basic understanding of how components such as networks, desktop, and mainframe computers interact. There are numerous CLE courses presented by local and national bar associations, many taught by data discovery experts. These courses provide basic to advanced information, and can also give you a preview of how "your” expert will present information to the court. Gaining this understanding will also help you weed out the qualified experts from the wannabees.
Deborah H. Juhnke
