Part II of a two-part series. Part I appeared 12/03/08.
Forgive me – I’m in a mischievous mood today…
PART II – LEGAL RELEVANCE
“All the king’s horses and all the king’s men couldn’t put Humpty together again!”
This is a humorous nursery rhyme from my childhood. Others, like Ring around the Rosey or London Bridge might have illustrated my point well, but those are missing the most important part; with e-discovery, once the opportunity is lost, it’s likely a permanent result.
Let’s say you’ve made it all the way through to this stage, If that is so, then not only have you located evidence, you’ve established that it’s logically relevant (which in law-speak generally means that the evidence is material to prove or disprove a disputed fact that is of consequence to the action, and has probative value). That takes care of that, right?
Not so fast. Now, you have to persuade the court that it’s legally relevant to your case; and that means laying a foundation of admissibility. Your adversary is going to use every tool at his or her disposal to knock out items that exculpate your client. Did you take care to make sure that all technical aspects have been satisfied? A paper trail is one thing, but an electronic trail? Maybe a game of Twister would be easier.
In law school, we had a ‘mini-checklist’ that would help us remember all the things we had to think about when addressing this type of evidence:
- Is it Relevant?
- Is it Authentic?
- Does it violate the Best Evidence Rule?
- Is it Hearsay?
- Is it Privileged?
- Is it Parol Evidence?
Techies, take a deep breath.
For our purposes today, I’m not concerned with three through six. Lawyers will determine the disposition of the evidence once it’s produced. But what about one and two? There are a lot of steps leading up to production. The data may pass through several hands before it makes its way to the legal department. Let’s take a look.
We discussed logical relevance above. We have, theoretically, material evidence. Now, we must lay the foundation (also mentioned above).
We have to establish that the evidence is what it purports to be. That’s not simple, even when it’s paper. We need an electronic trail to follow – and that’s the east part.
First, we have to establish chain of custody. That means we need to link together the source and all phases it passed through – kind of like a Barrel of Monkeys. If a cutting-edge method was used to procure the data, there could be a scientific challenge to the process. We’ll need expert testimony to walk the court through how the evidence was obtained.
The lawyers aren’t likely to be doing it. They don’t have the technical know-how, plus, there are ethics issues with lawyers testifying in trials they’re working on.
Techies, let out that deep breath. If they won’t be doing it, you will! It means you’d better document everything, then be prepared to testify about it in court.
If this exercise proves one thing, it’s that attorneys and technology professionals have separate and distinct – and extremely important – jobs to do. But in certain areas, they depend on each other. If IT can’t get access to data, the attorneys may have to file a motion. If IT establishes that there will be a punitive cost to comply, the attorneys may have to push back – or seek cost-shifting. As an attorney, if I don’t explain to IT that every step of their process must be documented, am I hurting them? No – ultimately I’m hurting myself, because I’m the one who will have to establish authenticity in court.
As you can see, the process of bringing ESI to it’s proper form is a series of building blocks, not unlike stacking Lego bricks. In fact, in evidence law we have a saying; “A brick is not a wall“.
Take care. Failure to stack the bricks carefully and your wall will likely end up like Jenga or Kerplunk.
Darn…I should have been able to work in Operation…