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A litigator’s ability to find, collect, analyze and present documentary evidence very often spells the difference between victory and defeat in any given case. Not too many years ago, document discovery consisted of combing through files for paper documents responsive to opponents’ requests. “Smoking gun” documents could be discovered by any person who could read and who understood enough about the case to recognize the document’s significance. Moreover, the disposable nature of paper made it extremely difficult to determine if important documents had been destroyed, either purposefully or inadvertently. Times have changed. Litigators practicing in today’s electronic environment must understand the various ways information can be stored and retrieved in order to build the best possible case and to ensure compliance with discovery rules. Attorneys frequently retain technology experts who use software tools specifically designed to determine the existence and extractability of relevant information in clients’ — or adversaries’ — electronic repositories. This data may then be converted into usable formats, such as written documents, tables, charts, graphs or spreadsheets, for use in discovery or trial preparation, or as demonstrative evidence. Computer forensics commonly refers to the investigation of computer hard drives and backup tapes. A wealth of information is recoverable from this source, including active, deleted, hidden, lost or encrypted files or file fragments. In addition, files that were created but never saved — such as a letter or memo — may be recovered, as these files are sometimes “dumped” by the computer’s disk operating system and by Windows from memory to the hard drive. The process used by a computer forensic specialist involves taking an “image,” or exact replica of the hard drive, which is preserved in a locked, fireproof safe for evidentiary and chain-of-custody purposes. The specialist will run diagnostic software tools against copies of the image to determine the existence of relevant files. E-MAIL DISCOVERY The ubiquitous nature of e-mail presents a host of discovery challenges. E-mail is perceived, sometimes quite accurately, as the ultimate hunting ground for “smoking gun” documents. It may contain a wide variety of personal or company information, including internal or external correspondence, business plans, other confidential and/or proprietary documents, drafts, jokes and viruses. A company may have tens of thousands or even millions of e-mails resident on its servers, employee computers and archive tapes. The challenge is to develop a method by which the e-mails are reviewed in the most thorough and efficient manner possible. Reading through each e-mail is clearly not the desired approach, as it would often take a small army months to complete the task. Counsel and computer specialists must instead devise a technology solution to address massive e-mail review. At times, performing word searches using the built-in functionality within standard e-mail software to identify relevant e-mails rarely suffices. This standard software will typically identify every match, requiring that each document, including duplicates, be physically reviewed for relevance. This may result in significant inefficiencies in large volume e-mail cases. Moreover, standard search tools may not allow the specialist to review mailboxes and attachments en masse automatically, and may instead require that each mailbox and e-mail attachment be manually opened and searched, using only one search term at a time. Lastly, standard e-mail search tools are typically language-specific, creating difficulties where intra-company communications cover several languages. BUSINESS RECORDS Another area of electronic information is contained in business records, primarily accounting systems, databases or spreadsheets. This type of data is generally relevant in large-scale litigation or fraud investigations where a company’s accounting records are at issue. Accounting information is generally maintained in software applications that may make the analyses necessary to the case difficult to undertake. Moreover, many companies with operations in multiple locations use disparate systems. Accordingly, the information must be consolidated into a single format that will allow for the filtering, comparison and extraction of relevant information. This is usually accomplished by exporting the information to relational databases. These databases are typically customized to meet the needs of the particular investigation, although the platforms on which they are constructed are available through commercial vendors. These databases enable users to compare data, such as fourth-quarter to first-quarter sales, or users can match entries within the system, such as invoices to credit memos. Enormous amounts of data can be entered into these databases. The functionality of these databases enables counsel quickly to obtain important information and analyses central to the litigation. In that regard, the database should be designed to gather as many fields of information as possible from the underlying records. Frequently, information that seems to be of little or no interest at the beginning of a litigation or investigation becomes important later. ADDITIONAL CONSIDERATIONS In many cases, the majority of documents produced are in paper form. Counsel must consider, depending upon the circumstances of the case, whether the documents and the information contained therein should be digitized. Often the digitizing process adds efficiency, economy, and the ability to perform necessary analyses. This process is frequently accomplished through document imaging and repository management. Large paper-document populations are probably the second-largest driver of litigation technology, behind e-mail analysis. The need to organize, review, disseminate and produce numerous documents lends itself well to computer technology. A large volume of documents may be scanned (or microfiched), converted to electronic images, coded to produce indices of key data and made searchable, retrievable and printable with document management software. Edward A. Rial is a partner and Dan Regard is a senior manager in Deloitte & Touche’s forensic and investigative services group.

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