Six Articles on Electronic - Craig Ball

Craig Ball © 2007
efficiencies, flag pitfalls and suggest sensible, cost-effective search and sampling strategies
from the earliest meet-and-confer session.
If your client can't afford an attending expert — though in the end, amateurs costs much more
— at least run proposed agreements by someone in the know before they go to the judge.
7. Taking a "peek" at a computer that may contain critical evidence.
Metadata is the data about data that reveals, inter alia, dates of creation, access and
modification. Sometimes it's the "who-knew-what-when" evidence that makes the case. But if
you access an electronic document, even for a split second, you irrevocably alter its metadata.
So when metadata matters, beware the IT guy who volunteers to "ghost" the drive or run
searches. Run—don't walk—to engage a properly trained expert to create a forensically
qualified image or clone of the evidence.
8. Failing to share sufficient information or build trust with the other side.
The judges are serious about this meet-and-confer business. You can't complain about the
other side's demand to see everything if you're playing hide the ball. EDD-savvy requesting
parties appreciate the futility of "any-and-all" requests, but how can they seek less if you keep
them in the dark about the who, what and where of your client's electronically stored
information? Surviving the mutually assured destruction scenario for EDD means building trust
and opening lines of communication. The EDD meet-and-confer isn't the place for posturing
and machismo. Save it for court.
9. Letting fear displace reason.
Don't let an irrational fear of sanctions rob you of your good judgment. Clients don't have to
keep everything. Judges aren't punishing diligent, good-faith efforts gone awry. Your job is to
help manage risk, not eliminate it altogether. Do your homework, talk to the right folks,
document your efforts and be forthcoming and cooperative. Then, if it then feels right, it
probably is.
10. Kidding ourselves that we don't need to learn this stuff.
O.K., you went to law school because you didn't know enough technology to change the
batteries on a remote control. This English major feels your pain. But we can't very well try
lawsuits without discovery, and we can't do discovery today without dealing with electronically
stored information.
You don't want to work through an expert forever, do you? So, we have to learn enough about
EDD to advise clients about preservation duties, production formats, de-duplication, review
tools, search methodologies and the other essential elements of e-discovery. Our clients
deserve no less.
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