It is commonly accepted today that digital evidence has at least some role in nearly every matter. Because the sources and meanings of digital evidence are changing and evolving on a daily basis, an expert trained in the art of forensic examination and reporting is now a much more essential part of a litigation team.
In light of that fact, one aspect of the practice of law that can be interesting to outsiders is the degree to which risk aversion drives decisions for litigation teams. Avoiding risk is good, and generally those who do are rewarded in some fashion over the life of a case. One of the risks that is often figured into decision-making is the cost of a task or process, especially one that is outsourced by counsel.
The risk here is not simply to avoid spending money unnecessarily, but also to litigate a matter on a cost basis that is competitive with others providing the same service. However, litigation is at its core a competition that each side must try to win; this primary goal has the potential to cause conflict when it comes to risk aversion. Sometimes risks must be taken in order to win.
The Value Of Expertise
In the context of digital evidence, this scenario often plays out in the decision to retain a digital forensics expert early on in a matter, to determine how that expert might be used and at what budget. In my opinion, attorneys often make uninformed decisions around this subject based on the desire to manage costs.
The reason for this is, at least partially, an incomplete understanding of the value an experienced forensics team can bring to a case. The work a digital forensics expert can perform is not limited to simply collecting evidence. Documentation is created which can be valuable. Additionally, digital forensic analysis allows litigation teams to perform legal data analysis and study the other side’s compliance with written discovery.
In a recent matter, an expert was used to help draft deposition questions for a witness with a high level of technical experience. iDS experts have also sat in on technical depositions as second chair to review a witness answers and suggest follow-up questions.
When it comes to litigation readiness, the retention of a capable digital expert has become more a question of when and whom, rather than if. More accurate cost benefit analysis – analysis that includes the full scope of skills digital forensic experts bring to the table – helps litigators refine decision-making processes regarding digital forensic analysis.
iDiscovery Solutions is a strategic consulting, technology, and expert services firm – providing customized eDiscovery solutions from digital forensics to expert testimony for law firms and corporations across the United States and Europe.