Guest post by Jeff Kerr.
It’s safe to say electronic evidence—text messages, digital photos, cloud storage, and the internet of things—will be involved in every new case you have. As a result, it’s important you prepare to produce and request electronic evidence from the start of your case.
Why You Need to Prep
Early preparation for e-discovery doesn’t only reduce risk, it gives you the best odds of winning your case. Moreover, early preparation for e-discovery is the best antidote to clients who conceal facts or evidence from their own lawyers. Nothing matches the peace of mind you’ll experience from knowing all the facts, good or bad, before you start the formal discovery process.
In this post, I’ll cover the first of three important preparatory steps: the client interview.
When you begin working with a client on a new litigation matter, you’ll know something about the facts of the case, but next to nothing about the electronic evidence in your client’s custody. Even inadvertent destruction or modification of evidence can lead to heavy penalties or an outright dismissal of your case. To avoid spoliation, you’ll need a clear picture of what evidence your client has and where it lives.
To do this, you’ll ask a lot of questions, and most clients don’t love answering them. Some clients get nervous because there’s something in their digital lives that they don’t want you to know about. It could be about the case (e.g., evidence that contradicts parts of the client’s story or supports the other side’s claims), or it could be something more personal (scandalous text messages or embarrassing browser history). Either way, it’s better to deal with these problems upfront while you can do something about them (or, alternatively, walk away from the case). In my practice, I helped clients understand the need for my questions by saying the following:
- “I want you to get the best outcome; that’s my job. To make sure that happens, we’re going to force the other side to turn over emails, files, text messages, digital photos, social media posts, and anything else they have so that we can prove you’re right. They will ask the same things from you, and we have to be prepared. If we don’t have a strong defensive position on discovery, we won’t be able to be aggressive about getting the evidence we need.”
- “It’s also very important to go over sources of electronic sources so that we can determine a cost-effective preservation strategy. This is the best way to control costs and avoid problems at a later date. If we’re going to win your case, we can’t lose it first because of a spoliation issue.”
Once you’ve gotten over any objections, you can proceed to ask questions about different categories of electronic evidence. Even if you’re an expert on IT issues, it helps to have a checklist or a script, which you can download below:
Tailor the questions you just downloaded to your specific case. For example, if a business client was sued by a former employee, then you’ll gather more information about personnel records, compensation data, internal email, HR databases, and the plaintiff’s former workstation. On the other hand, if your client was involved in a slip-and-fall incident, you’ll focus more on SMS records, geolocation data, fitness tracker data (to verify injuries), and social media (to verify pain and suffering). Also, note that even though the focus is on e-discovery, treating paper documents as part of the same puzzle is a good practice.
Don’t let the questions listed limit your imagination or your follow-up questions in any way. Software and hardware is constantly evolving. Also be sure to take good notes. You’ll come back to them again and again as the case progresses. While your client may find the level of detail puzzling, a thorough interview pays dividends and is a necessary pre-condition for a strong preservation strategy.
Jeff Kerr is CEO of CaseFleet, a platform for helping litigators manage their practices and win more cases. Before starting CaseFleet, Jeff was a managing partner at Mays & Kerr LLC, where he focused on employment litigation and eDiscovery and was selected as a Rising Star in 2015. Jeff frequently writes and speaks on the topics of legal technology and eDiscovery.
Featured image: “Self discovery” from Shutterstock.
Read the next post in this series: "Preparing for E-Discovery, Step Two: Opposition Research."