7Safe has published a white paper which I co-wrote with James Kent of 7Safe. Its purpose is to explain, mainly to lawyers, the role of a forensic collection of data in the subsequent proceedings, whether those be civil or criminal proceedings. The paper is called eDisclosure & Forensics – What do I need to know?

The paper traces the development of forensic techniques which were used first in cases involving fraud and the like. As defendants’ lawyers became more adept at challenging the technical evidence, so police and other enforcement agencies needed to improve not merely the manner of collection but their subsequent ability to prove that the collected data was what it appeared to be and had come from the alleged source without having been tampered with on the way.

The result was a set of guidelines commissioned by the Association of Chief Police Officers (ACPO) in conjunction with 7Safe. Its principles are set out in our paper.

On the face of it, electronic disclosure for civil proceedings generally requires a lower test. Relatively few of the cases handled by commercial lawyers involve disputes about the genuineness or condition of the documents. Some cases obviously do require this – employees who leave a company to set up their own business often give themselves a leg-up by taking documents and data with them, for example. It is important for the former employer to try and prove that this was done; it is equally important (and often overlooked) that an innocent employee may need the same exercise done on his behalf in order to acquit himself of such actions.

At the opposite extreme, there are many cases in which no such exercise is required – the validity of the documents is beyond dispute and the manual identification and copying of the relevant documents is perfectly adequate.

Between these two extremes, lie a wide range of circumstances, where it is not always possible to predict whether the spotlight will turn on the authenticity of the documents. You do not need to get anywhere near allegations of fraud, for example, to want to prove or deny the suggestion that the managing director was better informed about the circumstances giving rise to the claim than he now says he was. He may merely have overlooked or forgotten it, in which case the production of an e-mail which demonstrably came from his personal laptop or BlackBerry might jog his memory. Nor is the need for this confined to the adversarial stage of proceedings. If such an e-mail exists, then it is better that the company’s lawyers flush it out at the beginning, so that its existence is played into the early decision-making. That is less embarrassing, to say nothing of cheaper, then having the e-mail come to light after the production of a witness statement whose central premise it contradicts.

Although, as I have said, it is often manifestly unnecessary to engage in any sophisticated form of data collection, one often hears it dismissed as unnecessarily expensive by people who have neither calculated the cost of any lesser form of collection nor taken the trouble to find out what the costs might actually be. As with so much else, this is a risk management matter — in one hand there is a possibility of neglecting a step which the professional conduct of litigation requires; in the other hand there is an estimate of the costs of litigating around that risk. That is the model approach anyway – quite often both hands are empty, with no idea of the risks and still less of the costs.

Forensic data collection is technical stuff. More than any other aspect of using technology for litigation, it requires people who, metaphorically at least, wear white coats and work in laboratory conditions using skills and equipment which are beyond the rest of us. The mistake here, perhaps, is to over-estimate how much one needs to know as the lawyer commissioning the collection. You do, of course, need to know what you are getting for your money and why you might choose one route rather than another. You do not need to know too much about the mechanics of collection and, if you do, Jim Kent will tell you.

There is something else about Jim Kent which is worth knowing. I recently had cause to ask several people if they had skills in a particular area. The first answer back, more or less by return, was from Jim.

7Safe: +44 (0)870 600 1667   Jim Kent james.kent@7safe.com

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