The idea that a law firm might keep a copy of Guidance Software’s EnCase Portable in a drawer for on-the-spot collections leads into a discussion about how much a firm needs to know.
I will let Guidance Software speak for themselves about EnCase Portable via their web page about it, the descriptive information about EnCase Portable Version 2 and the press release which says that it is due to be released in late March 2010.
I am, as always, more interested in how new developments can help lawyers to understand what these applications can do as a technical matter, and to see how they might take control of parts of the eDiscovery process where it makes economic sense to do so. The point about EnCase Portable is that it allows lawyers and their clients to undertake rapid data collections without outside help. My general proposition that most lawyers do well to have a stable of experts – people whose skills, prices and individuals they know – on whom they can call quickly. This applies particularly for the collection stage which is both technical and the foundation for everything else – foul that up and what follows is inherently flawed.
To US lawyers, that last sentence will sound understated to the point of nonchalance or even negligence. The English, however, have less formal cause to worry about whether their collection is “defensible” with all the rigour which that implies in the US and, besides, the English tend to react in inverse proportion to the level of excitement and urgency thrown at them. This is not to diminish the importance of forensic collections – no one will argue about the importance of doing the job properly (although whether they will actually do so is a different matter), but as a marketing point, the English are more receptive to arguments based on ease of use and reduced costs than on dire warnings about getting it wrong.
Encase Portable is not sold as an alternative to full-scale forensic collection by experts where that is warranted, but the idea of having a forensic collection tool built into a USB device is attractive when the case budget will not run to external collection or when “urgent” means “now”. A law firm employee armed with such a device and minimal instruction might collect data from a critical machine on the spot. The device may be pre-configured to search for particular types of files or by reference to specified criteria.
The best description of what is involved comes from an article in Law Technology News of 3 December 2009. With the title Collect Evidence with EnCase Portable and the subtitle Enables anyone with basic computer skills to collect electronic evidence in the field, the article describes how one sets about such an on-the-spot collection. The most telling sentence, perhaps, is the one which says that, having used the device, the author has “sworn to do online banking and credit card management from a computer that never physically leaves the home office”.
Encase Portable is a good way of demonstrating to lawyers what the process is about and what might be found. The mechanics are more akin to everyday tasks like connecting a BlackBerry or MP3 player to one’s laptop, notwithstanding the rather more serious purpose involved. More than that, it would make sense for every firm to keep at least one in the office and to give someone some basic training in its use. Very often, perhaps, the fact that the collection is forensically sound and defensible is not the main point when what matters may simply be a quick and easy way of preserving relevant files from a laptop or desktop computer without any great formality or expense. If it is defensible as well, so much the better.
On the subject of Guidance Software, the latest version of their magazine Real eDiscovery is now out. This, as always, has good punchy writing aimed at carrying maximum message in minimum verbiage, and is well worth reading whatever your jurisdiction. I will pick only two quotations. One is from Former Magistrate Judge Ron Hedges who says:
the day is coming … I think judges are going to start saying “don’t come to me, a large organisation, and tell me that you can’t do this or that, when you really haven’t tried to internalise it.
The reason this caught my eye is that it is similar in approach to the line taken by English Judge Simon Brown QC in Earles v Barclays Bank Plc  EWHC 2500 when he criticised the defendant bank for its failure to produce documents relevant to the issues. US courts and judges may, as I suggested above, get more wound up than others do about failures to keep and collect documents, but lawyers and their clients alike need to be much better informed than they are in all jurisdictions.
The other quotation I liked came from Magistrate Judge Andrew Peck, who seems to have had a bad run of lawyers pleading their age as an excuse for ignorance. Judge Peck is a Sherlock Holmes enthusiast, and sees parallels between the way the police call on the expert Holmes and the need lawyers have to use a specialist supplier of software or services. He says:
Litigators today, whatever their age, must be competent in eDiscovery issues. One cannot say, “Look at my grey hair Judge; how do you expect me to understand these computer issues.” So like Inspector Lestrade and the other Scotland Yard detectives who called on Holmes when they were “out of their depths” in a case, if you cannot learn how to do eDiscovery yourself, you need to associate with a Holmes-like eDiscovery expert, whether as eDiscovery counsel or perhaps employing a vendor or expert. eDiscovery is simply not “elementary.”
Lord Justice Jackson’s report is similarly strong on the need to call on the help of supplier-experts, whether for the delivery of education or for actually doing the job. Neither judge is saying, however, that these things can simply be delegated blind – the instructing lawyer needs a certain level of skill in house, if only at the level of needing to know who to instruct.
Whether you know no more than that or are sufficiently alert to keep a copy of EnCase Portable to hand, is the proper outcome of a strategic decision which, at the least, decides what the level of in-house knowledge and resource should be. Many lawyers simply default to the hope that they will reach retirement without needing to know very much at all.