ALSP Update, June 2008 - Furinzic Stuff for Food?

Edited by Joe Howie, the Association of Litigation Support Professionals (ALSP) publishes a monthly electronic newsletter for its members (ALSP Online).

This month, I was one ALSP member posed with the following scenario:

“I asked several industry veterans what they would suggest to a friend who was deciding which vendor to use for e-Discovery or digital forensics, assuming there was some reason the friend could not use the veteran.”

My Response

Preliminary

Today, many vendors provide a “full-service” electronic discovery offering, which generally encompasses consulting services. Such consulting services may extend to the provision of specific expertise and opinion in relation to ESI or e-Discovery. Consequently, the variation between procedure-based e-Discovery tasks that can be largely standardized — e.g., exact de-duplication, TIFF/PDF production — and the provision of specialist opinion, means selecting a vendor requires diligent consideration and will vary depending on your requirements.

Sourcing Electronic Discovery — Formal Methodology

If you are a law firm or corporate organisation with available time wishing to formally insource or outsource stages of the e-Discovery process, you may devise a Request for Proposal with reference to the “Navigating the Vendor Proposal Process: Best Practices for the Selection of Electronic Discovery Vendors” guide produced by the RFP Sub-Group of The Sedona Conference’s WG1.

Web-based solutions tailored for the litigation support industry are also available to facilitate this process; e.g., i-RFP. The conclusion of an RFP process should coincide with the selection of one vendor, or a shortlist of vendors, as a panel, to implement a solution or perform specific e-Discovery tasks as required.

Sourcing Electronic Discovery — Express Methodology

If you are a law firm or corporate organisation, with limited time wishing to insource or outsource stages of the e-Discovery process for a particular project, you may consider asking the vendor a limited subset of questions typically addressed by an RFP, including but not limited to:

1. Preliminary
   • Have I appropriately identified my requirements?
   • Does the vendor service similar-sized firms/organisations?
2. Credibility
   • How long has the vendor been established?
   • Can the vendor provide client references?
   • Can you contact colleagues or professional networks — e.g., Yahoo! LitSupport Group — to source further independent opinion?
3. Knowledge and Resources
   • Does the vendor and employees appear to be active and credible participants in the e-Discovery industry? For example, look at the vendor's industry memberships, certifications, presentations and white papers.
4. Project Management
   • All successful commercial operations rely upon diligent project management. Does the vendor provide appropriate project management documentation and/or tracking facilitates such as task/implementation schedules, timeframes and cost estimates?
5. Quality Control and Risk Mitigation
   • With an understanding that e-Discovery experts inherently deal with potential electronic evidence, what quality control and risk mitigation measures does the vendor use to provide assurance and mitigate risk in using the vendor’s services or solution?
6. Efficiency
   • Does the vendor promote any techniques or technologies to facilitate efficiency in meeting identified requirements?
7. Confirmation
   • Have I appropriately identified my requirements?
   • How receptive is the vendor to my requirements?
   • Is there an option to sample/evaluate the vendor’s service/solution?

Sourcing a Digital Forensics Expert

The engagement of a digital forensic expert is an increasingly technical process. For example, the expertise and resources required to merely forensically image one standalone desktop computer is substantially less than that required to forensically collect data from multiple sources within an enterprise environment with a view to recovering deleted e-mails and database records.

If you are a law firm or corporate organisation wishing to engage a digital forensic expert, you may consider evaluating a list of experts on criteria such as:

1. Relevant Experience
   • Has the potential expert performed similar forensic engagements — from performance of actual forensic collection and analysis to report presentation and testimony?
   • Does the potential expert appear as an active and credible member of the digital forensic community?
2. Relevant Qualifications
   • Does the expert possess any qualifications or industry certifications that serve as an independent metric of expertise and experience? (Refer to May 2008 ALSP Update article titled “Digital Forensic Certification and Training”)
3. Verbal Communications
   • Can the potential expert clearly and concisely explain technical terminology and issues with appropriate real-world examples?
4. Written Communications
   • Can the potential expert make available any previously drafted reports, including statements and affidavits, redacted where appropriate to provide insight about the quality of written correspondence?