• Brandon Harter

Making eDiscovery Your Ally, Not Your Enemy

Updated: May 7, 2019


There used to be a gentleman’s agreement when it came to discovery:


I won’t ask you for electronic evidence if you don’t ask me.


But this era of “Don’t Ask and Then It Doesn’t Exist” is over. Now litigators like me will ask for your electronic goodies, even in small cases.



You Need Metadata


How many of us have been guilty of letting our clients print out their important emails instead of asking questions about how they were collected? Or have hit Print Screen to capture a photo off of social media or a text from a cell phone? Or have dragged and dropped a group of files off your server onto a basic flash drive without noticing that it completely erased half of the metadata?


I know I’ve done it. So my guess is you have too.


By now everyone’s heard that metadata is the data about your data - when a file was created, who created it and at what place and time, when it was altered, edited, deleted and more. Twitter has over 150 metadata fields per tweet!


The basic metadata code behind a Twitter tag. Source: Moz


But why does all that stuff matter?


A file without data is of little use when it doesn’t even confirm the IP address where the file was created to verify it even belongs to your client. A printout of a social media post can be forged by anyone with Photoshop. And a text forwarded from your client’s phone to yours can’t be linked to the opposing party at all.


As panelists asserted at the Federal Bar’s 2015 Federal Litigation Conference:


Care must also be taken to create a defensible chain of custody record, which establishes the handling and movement of evidence during and after collection. Any mishandlings of the collection and transfer of electronic data can adversely impact the jury’s weight given to the evidence.

We can no longer practice litigation in a digital world as though we’re still living in analog.


Source: Spinweb


You Need Fewer Files to Look Through


We’ve all had to write off hours of our time spent doing doc review because we’ve had a client who wouldn’t pay for it. Clients woefully underestimate the time it takes to go through the hundreds of thousands of documents that exist in one email account.

In my experience, even a fast reviewer can only handle a few hundred documents an hour, and only then if you can mark some of them in bulk using a document review program.


But how can you help it?


You need to drastically cut down the number of files you need to look through. The more relevant the files are that are pulled from your collection, the less time it takes to review them.


Everyone agrees that’s a good idea in theory, but how can you do it? By letting Gathering Mist’s computers do some of the work.


Source: Project Syndicate


You Need Something Easy and Cheap


Big-city forensic eDiscovery firms would have you believe that they’re the answer. After all, they can get you anything and everything you need, use the latest tools to cut down the number of relevant documents and produce it for you in any format. What’s not to love?


Well… the price, for one thing. For most small- to medium-sized law firms, a forensic eDiscovery firm is complete overkill in the majority of cases. Plus, it’s expensive, and it will take a while.


You need another option. You need a company that can do the job for a price that your client won’t balk at and in a way that’s easy for you - an eDiscovery company with the expertise to pull everything that you need and nothing that you don’t.



Example of the password-protected encrypted external hard drives we use to collect your data. Source: Apricorn


How a Basic Collection Works


Step 1: Identify Your Needs

We chat on the phone or by video conference to determine what you need and the basic keywords, criteria and relevant time-frame for your collection.


Step 2: Collect Your Data

Here we have two options: First, you can unleash us to work with your client’s IT folks to take care of the collection directly. We’ll keep you up-to-date without boring you with the details. And, at any time, we can summarize what we’ve done so you can tell the Court.


Second, we send you a specially programmed hard drive that your client plugs into each computer we are collecting from. All you have to do is hit Start. It will copy and save everything it needs straight from your hard drive - including data from Outlook and other email programs - while you still keep access to your computer.


For simpler collections, such as from a cell phone, have your client drop off their phone for an hour, and we’ll email you the results.


Step 3: Process Your Data

Our sophisticated programs combined with our expertise in deduplication, deNISTing, culling and more cut down the data so you’re not overwhelmed with more than you can handle.


Step 4: Return the Data to You

We can produce the data you need in all basic formats, including PDF files, images with load files, or native productions. We also can set you up with a cloud-based platform to easily review what we've collected and processed.



Need More Help?


There are many other areas where some extra eDiscovery knowledge can help including:

  • Implementing a litigation hold - preserving all data that may relate to a legal action

  • Developing a discovery plan - including preparing for an F.R.C.P. 26(a) conference, and

  • Targeting discovery requests to get the data you need

Our consulting services give you the benefit of having an expert on your side without the excessive cost of a forensic witness.


Let’s get started. Email us today to get your first project up and running.

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