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E-Discovery: Why Should Lawyers Embrace It? ESI Special Master Craig Ball Says Evidence is More Than Paper

By District of Columbia Bar

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Electronic discovery (E-Discovery) is often times a complex process when preparing materials for an investigation or trial. The process is not only complex, but it may require that you go through an immense amount of electronically stored information (ESI) such as emails, documents, presentations, databases, voicemail, audio files, video files, social media and web sites.

Nationally recognized ESI special master and attorney Craig Ball takes a few moments to speak with Washington Lawyer Magazine’s Jeff Leon about some E-Discovery basics, implications, and the importance of geolocation.

JL: Why should lawyers embrace E-Discovery?

CB: We live in a digital world and a consequence is that is evidence. We are facing an exponential growth in this volume of evidence, and what we're seeing today in 2016 is going to be 5 times as great within 5 years. Lawyers need to stop being scared of electronic evidence and realize that it's just that--evidence. It's something that will help them get closer to the truth.

Ultimately, what we seek to do is establish people's behavior, and their intent and mental state as they undertook certain behaviors, and the electronic trails we leave behind are more persuasive and probative than anything we've ever had before in law. There's nothing close to our ability to see inside people's heads by virtue of their use of these electronic tools today.

JL: What is E-Discovery about?

CB: When you write this article, it will be composed digitally. If you were taping this convo, it would be recorded digitally. Virtually everything we deal with today in the nature of evidence with save and accept for live testimony, is information that's born digitally.

Lawyers have a topsy-turvy view of evidence today. They think evidence is a document and they focus on turning it into something electronic when, in fact, the evidence was born electronically and was not generally meant to be turned into something other than data.

We have a challenge today of helping lawyers understand that they have to deal with DATA, not DOCUMENTS, and they have to deal with data in its native locations and forms in order to be most effective in representing clients. That's a huge and challenging hurdle for lawyers to lead.

JL: What are the implications of this?

CB: Very few of us live in a world where our comings and goings are not being tracked to some extent through electronics. Assuming you came from your home to work today, you were photographed digitally likely hundreds of times in whatever means of transport you chose.

If you were on the street or the subway, your location was tracked by a variety of different technologies. Your phone was communicating with routers while moving through the DC Metro area. Additionally, you were using a device while you sat on a bus or the Metro checking out various websites and social networking.

You were leaving digital breadcrumbs intentionally and unintentionally in massive quantities just on your trip to work. This is all digital evidence.

JL: What is the relevancy of E-Discovery as it pertains to major cases today?

CB: What we see in the FBI vs Apple is the dispute that goes into a privacy and corporate policy and constitutional rights. All major issues. Behind it is the recognition from the government that they are far more likely to obtain probative evidence on terrorist activities and their contacts. All of that is extremely probative evidence.

Compare that to their electronic movements and communications in the weeks leading up to this attack to what it might've been in say, the Kennedy assassination investigation, or the proto-digital age where you had to gather Zapruder film and ask eyewitnesses, and getting contradictory recollections, and have I heard this and that.

Today, we have this ever-vigilant, highly accurate record being made of what we used to rely upon, very unreliable eyewitness testimony. Almost any case you can think of today. Politically charged matters like Hillary Clinton's emails is a great example. We are ultimately talking about electronic communications.

JL: What would say is the most powerful E-Discovery tool?

CB: Geolocation is among the most powerful of these to emerge. Think of how many cases of all sorts could be resolved if you had precise and reliable information about geolocation. Who was speeding into the intersection? Who blew the red light? Which corporate titans met on the golf course to fix prices in an industry? The ability to a criminal at the scene of the crime at the time of the crime is extraordinarily powerful, both to exonerate and implicate.

Geolocation is the most powerful, direct, and clear way to think of the value of electronic evidence. However, we've had circumstantial value of electronic evidence for a long time. Metadata, for example, allows us to know who participated and any alteration of documents.

Moment-by-moment there are a record of devices keeping tabs on you. My thermostat might be a cross-witness one of these days.

JL:  You are a faculty member for the D.C. Bar CLE course “Applying the New Federal Rules and Related E-Discovery Technology in Your Practice.”  What can attendees of the course expect to learn?

CB: In this seminar, we will be talking about two different approaches. One approach will address the application of the law and the tactical use of the rules and electronic discovery (which will be well-familiar to those in attendance). 

The second approach, I will be talking about the technology and helping lawyers to understand some of the nuances of electronic evidence in terms of how you get it, how you search it, and what you're facing in terms of new sources of evidence that are very challenging to preserve and analyze.

Register for the upcoming CLE: “Applying the New Federal Rules and Related E-Discovery Technology in Your Practice,” April 27, 9 a.m. – 4:15 p.m., 6 CLE Credit Hours. Faculty include Craig Ball, Judge John Facciola, Judge Paul Grimm, Wendy Butler Curtis, and Theodore C. Hirt.

May 9, 8–9 p.m.: "E-Discovery Prime Time With Craig Ball" (Webinar only)

About Craig Ball: Board Certified trial lawyer, certified computer forensic examiner, law professor and electronic evidence expert. He's dedicated his career to teaching the bench and bar about forensic technology and trial tactics. After decades trying lawsuits, Craig limits his practice to service as a court-appointed special master and consultant in computer forensics and e-discovery. A prolific contributor to educational programs worldwide--having delivered over 1,600 presentations and papers--Craig’s articles on forensic technology and electronic discovery frequently appear in the national media. For nine years, he wrote the award winning column on computer forensics and e-discovery for American Lawyer Media called "Ball in your Court." Craig Ball has served as the Special Master or testifying expert on computer forensics and electronic discovery in some of the most challenging, front page cases in the U.S.