I took part in a webinar yesterday with Caitlin Murphy of AccessData, Tom Gelbmann and George Socha of Apersee, and Chad Papenfuss of the Federal Trade Commission. Our subject was Early Data Assessment and the title we gave to it was Early and Often – the word “often” implying that assessment is a continuing process which goes on throughout a case.

We began with the steps which can be taken to work your way into the problem, perhaps starting with the primary document sources of the main players and using their documents as a way of establishing the issues and facts, the holes which must be filled and the potential costs of moving out to a wider set of documents should that be required.

The rise of social media is a growing problem, alongside its many benefits. However many terabytes you have of email and Word files, there is plenty of scope for a blog post, Facebook entry or tweet to become the turning document in a commercial case as well as in divorce and personal injury whence most examples have come hitherto.

The courts are becoming increasingly involved in the assessment of the data implications – the SDNY Model Order for Complex Cases and the UK Electronic Documents Questionnaire both aim to give the court an early feel for the scale of the data as a precondition for understanding what course in proportionate.

Mention of the SDNY Model order took us into the area of lawyer competence – the lawyers are required to certify that they understand the implications of the sources or have engaged the services of someone who does. One cannot really define “competence” beyond reciting the rules governing lawyer capability. The definition must necessarily include “knowing the limits of your knowledge”. A good starting-point is a check-list, perhaps using the UK Questionnaire as a starting-point, to make sure that whole areas – such a social media – do not get overlooked entirely.

In answer to a question from the audience, we considered the circumstances in which forensic collection would be necessary or justified. One often-overlooked element is the relative continuity of personnel within the company and within its chosen provider of forensic services – would the person doing the collection still be available when the time came to prove what was done?

We ended with a look at costs and the ways of controlling them. It would be a good start to know what you spent last year, because how else can you measure the value of any investment aimed at reducing those costs?

This was enjoyable to do in such company. We were joined by 244 live listeners, a very satisfactory audience.

The webinar is available on demand on the Apersee site.