III. LITIGATION SUPPORT SOFTWARE
There are many programs available commercially which will manage and facilitate a litigator’s practice. Particularly, if you are considering tackling a large document intensive file, litigation support software such as Summation, Replica, Document Director, Needles, Abacus Attorney, Abacus Law and Ready for Trial are all helpful. Such software is designed to keep track of the people and events involved in a file and to aid in the collection, organization and understanding of the facts and law. The latest thing in litigation software such as Total Access, facilitates a computer-integrated court room, which gives a lawyer real time litigation support. This allows you to attach issue codes to questions or answers and allows you to scan transcripts and other documents for various combinations of text, issue codes and time references. All of this is to help develop trial strategies and generally prepare for settlement or trial.
IV. DISCOVERY OF ELECTRONIC EVIDENCE
As your file moves along to the discovery stage, technology now affects what you can discover and how you do it. A great deal of important personal and business information is created, stored and communicated electronically. The buzz phrase is electronic media discovery or E.M.D. Today, to ignore e-mail and other electronic data sets is to miss evidence, which could be critical in the litigation and which I think would be negligent on the part of the lawyer.
As one commentator explains:
“Not discovering someone’s computer files is like getting a warrant to search a house and not opening a locked door … there could be some valuable evidence and investigative leads inside … you have to look.”(3)
We need to develop the knowledge and skill necessary to take advantage of the information residing in electronic form. We need not become computer specialists, but we do need to understand enough about technology to ask the right questions and enlist the assistance of forensic computer experts, when necessary.
If acting for a client with large amounts of electronic data, a lawyer should advise the client that such data may be targeted for discovery and how to be prepared. Prior to litigation, a proper document management system should be in place, with policies on periodic purging of electronic media and archival retention, where appropriate. Once litigation has commenced, your defendant/client should be advised on how to adequately preserve relevant electronic evidence in order to avoid possible sanctions or a negative inference at trial. Of course, new electronic media are being introduced every day and depending on its nature, the policies and discovery process will change. Let us look more closely at common forms of electronic data and how to discover them.
Electronic media discovery refers to the use of traditional procedures to obtain disclosure of electronic communications and electronic records. However, there are unique aspects that make it a very valuable tool in complex commercial litigation. Electronic data is often more easily recovered than hard copy. People are often more careless when working with electronic records and early drafts of important documents may still be available. Hard copy can be shredded, but electronic data is more difficult to destroy. Hard drives are usually backed up and archived on a regular basis which may make each prior draft available. Documents which have been deleted can often be “undeleted” in whole or in part using readily available programs. So the smoking gun may be there waiting to be found if you know where to look and if you look long enough.
By way of example of smoking guns: One of the officers in the Rodney King litigation had sent an e-mail message that read “Oops, I haven’t beaten anyone so bad in a long time”. Another example, perhaps more properly described as being of smoking guns and roses occurred about a year ago in New York. Two co-workers who were dating, but who were married to other people, were fond of sending messages to each other using the company’s video e-mail system. One day the woman did a little strip tease in front of the video camera intending to send a provocative message to her man. But she inadvertently sent the message to everyone in her electronic address book.