Knowing What Is Knowable: Discovering Digital Truth

July 08, 2021

New data sources with ever-increasing volume and complexity are constantly bombarding the legal industry. Uncovering the digital truth — the ability to discern what occurred in a data-rich electronic environment — is a critical skill law firms need in today's technology age. 

New and emerging technologies underscore the critical nature of implementing a foolproof electronic discovery plan, even in situations that involve retrieving data from blind targets. But, the biggest challenge is knowing what is knowable and figuring out where this information lives. 

How Can You Know What Is Knowable?

The sheer volume of data and the type of data being investigated can lead to painfully expensive fishing expeditions, or even worse, a road to nowhere. You don’t want to spend valuable time and resources on a wild goose chase trying to figure out something that can’t be determined. Conversely, when the opposing side in a case presents evidence or claims certain evidence can’t be obtained, knowing what is knowable can help you argue your case. 

When the opposing attorney tells the court that data was lost, corrupted and deleted — it can’t be all three — you need experts who can call out the attorneys when they’re playing games or telling blatant lies. Then you can come up with a reasonable plan to take to the court to invalidate what the opposing side is claiming. 

Using AI is necessary given today’s electronic data sources, but there’s a human element that AI can’t replicate. When attorneys try to claim that artificial intelligence methods can only operate within certain confidence intervals, thus could have missed critical information, Blackstone Discovery provides rigor around such claims.

In one case where Blackstone Discovery was retained by a client that experienced a data breach, the government agency investigating that client’s response to the breach asked for search terms that could help illustrate whether the response was appropriate. Blackstone discovered those search terms would have brought in about 13 million documents to review. The agency needed the review completed in 45 days. 

Blackstone Discovery instead looked to validate the assumption that these were the search terms related to the client’s response. It analyzed the terms over a period of time to produce a list of only the terms that increased in frequency after the data breach. This approach eliminated 90% of the government’s initially requested documents — Blackstone had proved the documents were irrelevant to the case. 

Discovering Where Relevant Data Lives

The key to an effective discovery conference is counsel knowing the type of data most relevant to their argument. Let’s say you’re engaged in litigation over a non-compete agreement, which means sales processes and records will be essential. The requesting party will need to identify the defendant's CRM tool(s), lead-tracking tool(s), accounting software, and any other relevant data source that tracks the sales process.

These types of challenges require attorneys to understand how eDiscovery works and the data sources involved. For some, working with an experienced legal technologist with an electronic forensics background can be invaluable during digital forensics investigations.

Current eDiscovery technology can identify standard data targets that come from software-based communication and tracking tools, including:

  • Cloud-based email systems (Gmail, Office 365)
  • Local email systems (Apple mail, Outlook)
  • Shared data (Google Drive, Microsoft One Note)
  • Customer relationship management (CRM) data (Salesforce, Netsuite)
  • Chat services (Slack, Google Voice, Skype)
  • Service ticket systems (Zendesk, Freshdesk)
  • Other files from custodial devices

How Use of RFPs and Interrogatories Reveal Digital Truth Through eDiscovery

Even in situations where a party tries to withhold information that would reveal obscure but relevant data sources, opposing counsel can create RFPs, which depend on special parallel interrogatories to identify these sources.

An attorney can use the responses to these interrogatories to consult with a legal technologist that can perform computer forensics or work with an experienced electronic forensic expert to ensure:

  • Metadata produced or in a load file is responsive
  • Mapping of responses to known systems have the specificity required
  • Delivery of data is efficiently and cost-effectively reviewed
  • The production format used creates relevant data through its native file

An example that best explains the benefit of working with an experienced eDiscovery team like Blackstone Discovery could involve requests to produce a defendant's chats on Slack's business communication platform. Such a request may provide data in its native .json file format. This means that a single text document with months' or years' worth of data would need to be reviewed in a short period. 

Should the party providing this data create a TIFF version of the native format, it could make it nearly impossible to achieve any valuable review of this crucial information. 

Seasoned electronic forensic firms like Blackstone Discovery would be able to determine in advance what parameters are necessary for the production of this data and avoid this scenario altogether. Further, eDiscovery firms can assist counsel in determining the budget required to convert such data successfully.

Learn More About Uncovering Digital Truth in eDiscovery

Derek M. Duarte, President and legal technologist at Blackstone Discovery, once opined, "You've filed an action alleging unfair business practices against a new competitor. Initial discovery requests should be easy—email communications, spreadsheets, marketing materials. But in a world of cloud applications and an abundance of Software as a Service (SaaS) options, it can be difficult to predict where a company's most relevant information lives."

Today, the legal industry and technology have created a synergy that has made competency in eDiscovery a must-have skill set. The rapid implementation of state-of-the-art AI and automation has revealed more sources of evidentiary value. It presents a significant amount of data that is challenging to process within the time constraints under which legal actions operate.  

But for attorneys who need to focus their expertise on the law, it’s not realistic to become electronic forensic experts. Law firms need solutions when confronted with complex litigation and limited resources to review extensive amounts of electronic data. 

Customized evidence collection, processing and analysis require legal technologists with extensive experience in electronic forensics and the eDiscovery process to make the process efficient, mitigate data risks and improve overall litigation outcomes. 

With more than a decade of building efficient and successful data processing strategies, Blackstone Discovery provides a unique combination of data expertise and focused management of the eDiscovery lifecycle. From ESI Data Mapping to litigation response workflow designs, our firm coordinates your internal IT and security initiatives to create a sustainable and secure litigation response plan.

Learn more about our team of eDiscovery legal technologists and discover the Digital Truth™ by calling us today.