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Current pitfalls of eDisclosure outlined

Guidance Software : 24 June, 2008  (Technical Article)
With increasing amounts of digital evidence being required to secure convictions, Guidance Software reveals the five biggest detractors to providing electronic disclosure
Guidance Software has outlined the five most common pitfalls associated with outdated approaches to electronic disclosure. Electronic disclosure is now a standard component of the civil litigation process, fostered by a growing awareness amongst counsel and the bench that much of the evidence is digital. Without the right technology in place, disclosure can be an expensive and time consuming experience

"Most of the compelling evidence in litigation today is digital," said Patrick Burke, Assistant General Counsel for Guidance Software. "Yet, many large companies lack a cost-efficient enterprise class approach to enable rapid, thorough, and scalable data searching and collection that can reach every employee's data on laptops, workstations and servers.. Without the capability to reach all the digital evidence across the company's network, a major organisation's eDisclosure experience is very painful in terms of time, cost and business disruption."

The five most common pitfalls associated with outdated approaches to eDisclosure:

1. Unnecessarily High Costs. Major organisations can incur millions in out-of-pocket costs annually, mostly in the form of outside consultant fees to collect and process data. These fees - including processing fees for culling, deduping and creating load files for attorney review platforms - can be reduced to zero if the proper technology is brought in-house. As the volume of electronic data, including email, continues to multiply, so do the costs of eDisclosure when out-of-date technology is used. In many instances, skyrocketing eDisclosure costs force organisations to prematurely settle cases or, at a minimum, compromise their litigation strategy.

2. Inability to Collect Electronic Evidence Over The Company's Network. If a company cannot collect evidence in an automated way across its network, it must resort to manual collections. This means the companies' collection team (or teams provided by outside bureaux) must be sent to each office where the computers are located, incurring expenses for their time, travel and accommodations.

3. Business Disruption. Manual collection methods require the collection team to have the employee halt use of their computer for several hours each while the data is being collected - a serious disruption to that employee or executive's productivity. Sometimes entire servers must be taken off-line, which is even more disruptive to operations. When legal issues are sensitive, manual collections can increase employee paranoia and sometimes encourage potential witnesses to act rashly by deleting potential evidence.

4. No Triage and Bad Filtering. Much of the expense and burden associated with electronic disclosure is incurred in the collection aspect of the investigation process. For instance, without enterprise collection technology, collecting files from hundreds or even thousands of computers distributed across multiple locations must be performed manually. With no means to triage and filter out irrelevant data, the collection is overbroad, with a great deal of irrelevant data aggregated into a central database where it is then finally processed and searched.

5. Destruction of Computer Evidence. Destruction of computer evidence can be a major problem, and by some estimates, occurs in some form in most cases. Computer investigations that do not follow noninvasive forensic methodologies will likely result in altering and even deleting the target data. It's critical to establish a digital chain of custody to establish that the acquired computer evidence is not tampered with or inadvertently altered, thereby insulating the company from even speculative allegations of mishandled digital evidence.

"The traditional approach to electronic evidence disclosure involves gathering immense amounts of data, and then paying hundreds of pounds per gigabyte to cull and process the data to be loaded into a lawyer review application," added Burke. "This process results in ever-increasing costs as the volume of data within a corporation grows. Without proper planning, established procedures, and enterprise class technology, eDisclosure costs at large businesses will continue to spin out of control. That is why many large companies are implementing systemized in house processes for collecting and processing e-mails and electronic documents that may need to be disclosed for litigation or in response to regulatory investigations. This enables the organisation to avoid manual and overbroad collections of data by executing more surgical search and collection efforts."
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