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Electronic Discovery Consulting

Uncover Electronic Discovery Misconduct

Let’s say you’re another law firm, knee-deep in a case with a ton of electronic documents, and you suspect they may be taking advantage of the mess of documents to somehow keep that smoking gun out of your hands.  Unless you have developed the same sort of critical electronic document discovery technology that we have, your time may be better spent on the merits of the case while leaving the heavy lifting of sifting through the electronic documents to us.  We offer our electronic discovery consulting services commercially, so we can easily act in a non-legal capacity, should you prefer not to involve ‘another lawyer’ in your case, but would still like to avail yourself of our services in hopes of finding that smoking gun that can prove opposing counsel isn’t playing fairly.  Just send us the disks of your opponent’s electronic document production (including the metadata), and we do the rest.

Specifically, we can use our patent pending critical electronic discovery methods to analyze your adversary’s electronic document production to uncover occurrences of electronic discovery misconduct, including:

  1. Withholding key documents.  We analyze the metadata of your opponent’s electronic documents to determine if there are any digital footprints of missing documents.  We can’t find proof of every document withheld, because some electronic documents will not leave their calling card behind in the metadata of other documents.  But if the evidence is there, we will certainly try to find it.

  2. Fragmenting documents.  Electronic documents can be easily split apart in an electronic document production.  The reasons for this occurrence vary—either your adversary has willfully done it, or they were merely reckless in their handling of their electronic documents.  Either way, fragmenting documents can make any meaningful document review extremely difficult.  We can identify this misconduct to force your adversary to correct their electronic document production.

  3. Scrambling.  Scrambling in electronic discovery can be much more debilitating than in paper discovery.  Why?  Two reasons.  First, the advent of the electronic document has multiplied the number of documents within organizations.  Just think how many emails you write in a day.  Now think of how many letters you used to write on a typewriter.  The sheer volume of electronic documents makes putting Humpty Dumpty back together again a nearly futile task.  Second, electronic documents tend to have much more sophisticated filing architectures than paper documents.  Thus, there is more at stake in the ordering of electronic documents.  We can uncover scrambling within the documents themselves, such as when improper child attachments are attached to the wrong parent email message, or within the entirety of the production, where it looks like the other side simply pushed the “Scramble” button on their computer to produce their electronic documents in random order.

  4. Deliberate duplication.  Believe it or not, litigants have been known to produce the same set of electronic documents multiple times on purpose.  Once you process one set of electronic documents, it can be quite easy to simply apply new Bates numbers to duplicate sets.  Often this type of duplication will be masked by slight alterations to the metadata, such as by copying the source files into two, three, or more different file directories.  Uncovering deliberate duplication can save you a tremendous amount of time and money otherwise spent re-reviewing the same documents.

  5. Burying hot documents.  Maybe the other side isn’t so brash as to withhold their hot documents from you, but they don’t want you to find them easily either.  A trick we’ve encountered works with deliberate duplication—after duplicating the production multiple times, the hot documents are produced only once, scattered throughout the bottom duplicated set.  That way, your adversary can honestly tell the court that they have produced all responsive documents—they just don’t tell the court they have made it much harder for you to find them.  Our critical electronic discovery techniques will cut through the mountain of duplication to go straight to the buried hot documents.

  6. Fabrication.  If the other side tries to create their own evidence, the metadata may prove it.  We can systematically analyze the metadata for the electronic document production to uncover such blatant electronic discovery misconduct.

  7. Alteration.  Similar to fabrication, altering documents changes real documents after the fact.  We have seen this done in two ways.  First, data on real documents is changed.  Metadata can help establish that fact.  Second, after forcing a party to correct a previously flawed production, they decided to redact key documents to conceal damaging, non-privileged information.  We electronically compared the images of an electronic document production of approximately 100,000 pages, and found the alterations in seconds.

  8. Spoliation.  It’s human nature to try to destroy damaging evidence once you know litigation is imminent.  That doesn’t make it right.  Sometimes traces of spoliation can be found within the metadata of an electronic document production.  Our critical electronic discovery methods work to uncover this type of electronic discovery misconduct.

We’re not trying to suggest that every lawyer out there is corrupt or intentionally practicing these methods.  The fact is that most play by the rules.  But this stuff does happen more often than you might think.  But it’s so hard to catch (or at least it was until we came along!) that it seldom comes to light.  More often than deliberately, these sorts of misconduct happen inadvertently, sometimes out of ignorance and sometimes out of recklessness (neither of which makes them any more acceptable).  At the end of the day, if your case is important to you (and if it’s a “case,” we presume it is), you need to arm yourself with every tool you have available.  Please contact us for an initial evaluation of your situation so that we can determine quickly whether or not we would be able to help you with our critical electronic discovery methods.