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It’s no secret that trials often turn on the bits and bytes floating around computers and networks. E-mail has become the new smoking gun in modern legal warfare, along with electronic records, documents and databases. Lawyers get paid to keep on top of legal developments, not the latest technological developments. How can they keep up with all the changes afoot in electronic evidence discovery? Luckily, there are a wide variety of expert services and forensic tools for mining the data. Look at George Socha Jr., a litigation partner at Minneapolis’ Halleland Lewis Nilan Sipkins & Johnson. Rather than search through hard drives himself, Socha uses Ontrack Data International ( http://www.ontrack.com) to retrieve information from hard drives, tape backups and wherever else it may be stored. He then uses EnCase from Guidance Software ( www.guidancesoftware.com) to sift and sort through it. With EnCase, he can create an electronic case file from the acquired data. Socha can also search across directories and CDs to find those smoking guns. The software lets him save the searches and results for easy access later. New Technologies Inc. ( www.forensics-intl.com) offers a competitive product called DiskSearch. It is a DOS program that fits on a floppy disk (remember those?), so it is very portable. What should you do with all this data that you uncover? One school of thought is to have the acquired data stored in a standardized format, such as TIFF images or Acrobat PDF. These common formats work well when sharing files for collaborative work on a case, and for scanning or converting paper documents to electronic files. However, when digging through electronically created files, those common formats miss the mark. The original electronic files often contain hidden data or metadata (think of it as data about data), which is lost when converted to another format. On the simplest level, a files metadata are its size and date/time stamps. But other forms of metadata can be even more incriminating: A word processing files metadata might contain the authors name, company and prior editing revisions. Socha points out that database files show relationships between the records, which can be lost when converted to reports. Once you print it to paper, you’ve lost its value as electronic discovery, he warns. Spreadsheet files often contain formulas, hidden columns and links to other relevant files. The electronic breadcrumb trail is easier to find but only if you maintain these files in their original format. Otherwise, subtle, yet vital information may be lost or inadmissible Just thinking about electronic discovery is a step forward [for many attorneys], Socha says. The next step is to think about it as one of the very first things at the beginning of the case. Otherwise, he cautions, the more you need it, the more likely it won’t be there. That’s why forensic experts are worth consulting early in a case. They can help map out a plan of attack and prevent mistakes that give rise to tainting and other admissibility issues. The latest wave of electronic discovery tools focuses heavily on providing centralized, Web-hosted data repositories. Many also now give the user the option to view the files as TIFFs or PDFs (popular image formats), and still work with the file in its native format to preserve the metadata. Electronic Evidence Discovery Inc.’s DiscoveryPartnerOnline.com service allows full-text search, review and annotation of the raw electronic data. Attorneys can also use it to produce electronic data directly from their PC. Fios Inc. ( www.fiosinc.com) offers a Web-based application called “io” that allows teams to share and organize discovery data online. It can also search the contents of e-mail attachments and capture e-mail metadata. Applied Discovery Inc. ( www.applieddiscovery.com) is approaching the problem from the other direction. It lets companies get rid of information in documents that might be privileged or that may contain trade secrets. “Our redaction feature is unique because it allows users to permanently remove information from electronic documents, rather than just applying an overlay to temporarily conceal privileged information,” the company says in a news release. The unchanged original is still maintained in the database for authorized users in case it’s needed again. Applied Discovery has also formed strategic alliances with PricewaterhouseCoopers and New Technologies to provide a fuller complement of services to clients. Even coding and scanning bureaus are throwing their hat into the electronic discovery arena. Quorum ( www.quorumlanier.com) just announced a new Electronic Data Discovery (EDD) service. Like other service providers, Quorum’s EDD can automatically convert electronic files into a standard image-viewing format and extract both text and metadata from the file. Lawyers can also store these files at Quorum’s central database service at www.reddoc.com. Call it one-stop litigation support.

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