Ofsted has shown us WHY we should collect data properly and now lawyers must find out HOW

We do not yet know if Ofsted’s failure to give proper disclosure in the Shoesmith litigation was the result of cock-up or conspiracy – I am hedging my bets and assuming both that Ofsted fouled it up and that the government interfered to spin the story they needed. What matters is that the world now has a very public example of why a proper collection of documents is necessary. The next step is to explain how to get it done. A new video about EnCase Portable helps to get the message across.

As you may have gathered, I am resistant to the use of words like “revolutionary” when applied to products in the litigation support market. Most of the best products are, in fact, simply the latest iteration of a tried and tested product whose new features represent quiet and steady evolution rather than anything as exciting as a “revolution”. From my own years of selling software, I know that anything which suggests revolutionary change tends to alarm rather than excite, particularly if the audience includes lawyers. Revolution makes them think of tumbrils or Bolsheviks and the loss of an exclusive authority as power passes overnight to the masses – not the sort of thing lawyers go for at all.

What about the situation, however, where they are the masses and there is an opportunity for them to take power from a yet more exclusive group? I was talking along these lines to a couple of lawyers from a go-ahead regional firm a few days ago. I have come across them at various e-Disclosure-related functions, and they are a model for the kind of firm which is in a position to win work either by taking it away from other firms or by creating new areas of expertise in-house. The immediate context was the urgent collection of data, and I suggested that every firm ought to have a copy of Guidance Software’s EnCase Portable and the in-house skill to use it. I made it clear that I was not advocating that firms of any size should routinely handle all their own data collections, but that there are often circumstances when the ability to collect modest amounts of data – perhaps from a client’s laptop there and then – could save much time and expense and, indeed, could save a case in some circumstances.

I have written about EnCase Portable before, not just for its own sake, but because it is functions are easy to explain and to demonstrate, so it serves an educational purpose as well as functional one. It uses the same connection mechanisms as everyday items like BlackBerrys and MP3 players – you connect a small device to a USB port, some software starts up and asks some straightforward menu questions, and away you go. I first wrote about it, in fact, because Guidance Software had made good use of a simple, low-cost video on YouTube to demonstrate just that and I gave it as an example (see Show me more like this).

By chance, a few minutes after I was explaining this to the two lawyers, an e-mail arrived from Victor Limongelli, CEO of Guidance Software. Victor knows of my interest in simple explanations (that is how we first met) and sent me a link to a video which illustrates a few straightforward circumstances in which someone (that is, almost anyone) could use Encase Portable to deal promptly and cheaply with a straightforward data collection exercise. I pass it on  as much for the simplicity and reach of the approach as because of its subject-matter.

I was present at the meeting of Guidance Software’s Strategic Advisory Board when EnCase Portable was announced. It was immediately obvious that there was more to it than mere evolution of EnCase which is itself effectively a world standard. It was not so much that it would take work away from those whose business is data collection (although it might do so in smaller cases) as that it made it possible for small one-off collections to be done on-site which might otherwise not be done at all or, if done, would not be done either proportionately or in a defensible manner capable of proof in court. If not revolutionary (to return to my opening paragraph), it democratised an element of the e-Discovery / e-Disclosure process, putting power into the hands of those the lawyers.

I was talking about this with data collections expert Ian Manning of Raposa Consulting when we were in Edinburgh (see A flying visit to Edinburgh) together recently. It is not just that some low-end collections are now being done in-house but that there is a greater awareness of the value of proper forensic data collections, not just as a geeky technical matter but in terms of old-fashioned preservation and production of the evidence required to prove or disprove a case. Much of Raposa’s business involves that end-objective of drawing deductions from what is or is not found on a computer and presenting it to the court to prove or disprove some assertion critical to success. If Ian Manning, or any competent data collection expert, had been given access to Ofsted’s computers, the 17 iterations of the report on Haringey’s Children’s Services Department would have emerged in their proper place in the disclosure process and not just before the delivery of the judgment. It is not only Sharon Shoesmith who would have benefited – Ofsted itself has ended up with well-deserved egg on its face, the possibility of damaging adverse inferences and a huge bill of costs. Furthermore, it would be in a position to show whether documents were in fact deleted as a result of the admission which has now been wrung from them that there was an instruction to destroy documents. Without that evidence, the suspicion must remain that crucial evidence was in fact destroyed.

Let’s just stick with the Ofsted example, since it is likely to become the standard by which other botched collections are measured. I would not suggest (and nor would Guidance Software) that collections from Ofsted’s own servers would be done using EnCase Portable. An organisation of that size would either have a network collection application as part of its information management toolkit, or would bring in a data collections expert to acquire in a forensically-sound manner all the documents which were potentially disclosable (that expression “forensically sound” suddenly acquires everyday meaning now that we have a very public example of the opposite).It is quite likely that one or more of those involved in producing the report has information on a laptop in daily use and not necessarily in London. A copy of EnCase Portable might be sent to that person by courier, either with some simple instructions or with pre-set parameters designed to collect only the right classes of documents (we do not want the privacy implications of collecting the evidence of private finances, private affairs or embarrassing website visits). The recipient connects the device, follows the instructions and, mission complete, sends the data back to the lawyers. The expense is minimal, but the data will have been collected to the same standards as applied to the rest of the collection.

What matters here is that lawyers should be alert both to the implications of failing to collect data properly and to the ease with which that can be achieved, whether by instructing a suitable expert or by the use of EnCase Portable. Just as the exposure of MP’s expenses claims brought the concept of redaction to a wider world, so recent news reports now leave us in no doubt as to the importance of proper data collection. Videos such as the one described here make it easy to see how to avoid such problems in the future.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Data privacy, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Forensic data collections, Guidance Software, Litigation Support. Bookmark the permalink.

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