Get Back in the Race

Yesterday's litigation skills will not suffice for tomorrow's challenges, but it's not too late to catch up.

This year marks the 30th birthday of the IBM personal computer. Yet, like the hare in the fabled race, litigators have napped through the information revolution that followed the PC's debut. The tortoise is so far down the road that, instead of sprinting to catch up, the trial bar nervously reassures itself that yesterday's skills will surely be good enough for tomorrow's challenges.

Too many grouse: "I went to law school so I wouldn't have to deal with computers. Just give me a damn form and checklist."

We've got to stop kidding ourselves. It's too late for shortcuts and half measures. There are no forms or checklists that can take the place of understanding electronic evidence, any more than a Polish phrasebook will equip you to try a case in Gdansk.

But there are a few rules of thumb that, applied thoughtfully, will get back you in the race.

Let's start with the Big Four and work through some geek speak as we go.

THE BIG FOUR

Without knowing anything about corporate IT systems, you can safely assume there are four principal sources of digital evidence that may yield responsive electronically stored information (ESI):

1. Key Custodians' E-Mail (server, local, archived, and cloud). Corporate computer users will have a complement of e-mail under one or more e-mail aliases (i.e., addresses) stored on one or more mail servers. These servers may be physical hardware managed by IT staff, or virtual machines leased from a cloud provider, either likely running mail server software called Microsoft Exchange or Lotus Domino. A third potential source is a software as a service (SaaS) offering from a cloud provider (webmail).

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Source: law.com
By: Craig Ball