Fact Crashing™ is the acceleration of the consideration of ACTION data (Ambient, Contextual, Transactional, IoT, Operational, Navigational) to the benefit of resolving disputes.
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Principle 2: Data Should be Addressed Early
We are finding in case after case that structured data can have a meaningful impact on the claims and defenses and can lead to partial or even full resolution of the dispute. At the same time, data has significantly lower cost and burdens as compared to emails and documents. Therefore, it makes sense to deal sooner with evidence that can be (a) more dispositive and (b) less burdensome.
There are some other considerations, however, that are in favor of dealing with data sooner.
First, dealing with data may be a new experience for you. This is a good reason to get an early start. This will give you and your team adequate time to become familiar with the different handling, documentation, and analysis appropriate for structured data. I’ll expand on this aspect (the care and handling of structured data versus unstructured data) in a future installation.
Second, the availability of data from multiple sources may also present a good reason to get an early start. This can mean time and attendance, invoices, fleet GPS, phone logs, email metadata, text messages, usage logs, etc. Experience tells us that each data source will have a compound contributory effect on the value of the evidence. At the same time, each data source will have its own handing requirements. The exponential value comes at a linear cost, but a cost nonetheless.
Third, some data will be held by third parties. The subpoena process can take time. And some data sources may only be available after a chain of subpoenas are executed. Do you want to know who posted certain online blog comments? Be prepared to subpoena the blog site for the email address of the posting person, an email provider for information on a particular user account, an Internet Service Provider for the holder of a particular IP address. A chain of those three subpoenas can simply take time… even while the answers may be dispositive.
Fourth, Data has the ability to resolve some, or all, of the issues in dispute. As such, this data can have a meaningful impact on reducing the scope of discovery by reducing the need for discovery. This is the “crashing” that comes with “Fact Crashing™”.
By way of example: we worked on a class action of thousands of truck drivers. The case had been litigated for 7 years. Once we were involved to deal with structured data, the parties were able to settle the dispute several months later, based entirely and solely on the data. Granted — we dealt with 90 billion potential records from 40 different versions of 20 different systems. There certainly would have been an advantage to dealing with the data sooner during the 7-year history of that case.
If you want to prioritize the consideration of evidence that can have a meaningful and dispositive effect on your case, then you should deal with data sooner. This is the essence of Fact Crashing™.
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.