E-Discovery: A Catalyst for Cost-Effective Results

Cost-effective use of e-discovery can yield outcome-determinative advantages in all types of business litigation. Skelton & Woody has expertise in guiding clients through the opportunities and compliance requirements presented by the transformation of the business world from tangible information storage to electronic storage. We have extensive experience in utilizing discovery of metadata, email, texts, internal office chat, databases, back-up tapes, cloud storage, and social media posts to advance our clients' interests.

Deleted and supposedly erased data may be recovered from unallocated "free space" on computers of all kinds, including smart phones - sometimes revealing critical information that an opponent has either deleted in the ordinary course of business -- or tried to conceal. Chain of custody of devices is critical to the admissibility of information obtained from forensic examination, making it crucial that your counsel understand these issues.

Depending on the willingness of opponents to destroy hard drives (or claim they were lost), it can be critical to discover information from third parties, such as email providers and social media sites. We know how to navigate many of the roadblocks to obtaining data from cell phone carriers, Skype, Facebook, Google (and specifically its Gmail application), and other sites where vital information may be retained in electronic format.

Knowing the right experts to retain to both extract data in a format that can be used in depositions and trial, and to testify as to what was found in electronically stored formats, is also essential. We have worked with exceptional individuals and firms that handle both the data extraction and explanation aspects of expert services in this area, and can guide our clients to the expertise they need without prohibitive expense.

We tailor our discovery requests to how our clients' opponents utilize electronically stored data and how internal communications are handled. Proprietary internal "chat" has replaced emails in many major corporations today as the primary way certain sensitive communications are handled, and the ability to discover what is being said through these methods is akin to being privy to conversations held behind closed doors.

Examples of how e-discovery fluency is crucial in the current litigation environment range from cautionary tales to instances of how effective e-discovery brought suits to a quick and successful resolution. In an employment case concluded in 2016, the firm compelled and, with the assistance of computer forensic specialists, extracted data from an employer-issued cell phone and laptop to prove crucial facts (among them, an employee's efforts to set up a competing company by rogue employees who sued for wrongful termination after the activities were discovered), leading to a fast resolution of the case.

Sometimes, just sending the right request, worded in a manner that precluded evasion, can cause an opponent to decide to rethink its strategy and seek a fast settlement. In 2015, for example, we sent discovery targeting messages sent and received on an in-house chat system (which the corporation we were opposing had boasted about in a press release), leading to a quick resolution in our client's favor in a business break-up dispute. We look for ways to innovate and customize our use of e-discovery techniques to get cost-effective results for our clients.