The goal of eDiscovery is to acquire relevant electronically stored information (ESI) and admit relevant and useful ESI into evidence. While ESI may be used for other purposes, such depositions or settlement negotiations, if the ESI is not gathered properly, it will not be admissible into evidence. Such a result would waste both the time and cost expended to obtain the ESI. Lawyers should not gather ESI personally and the person who does the collection should be qualified to do such work. Otherwise, the ESI may not be admissible and significant damage may be done to a party’s case.
The Lawyer as a Witness. Lawyers who gather ESI directly face several dilemmas and dangers. One of the largest concerns is the lawyer becoming a witness in the case. American Bar Association Model Rule of Professional Conduct 3.7 prohibits the lawyer from acting as the lawyer in the case and being a necessary witness. Rule 3.7 states:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
The comment 2 to Rule 3.7 states:
The tribunal has proper objection when the trier of fact may be confused or misled by a lawyer serving as both advocate and witness. The opposing party has proper objection where the combination of roles may prejudice that party’s rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.
In the D.C. Bar in Ethics Opinion No. 228 expanded upon the purpose of this rule:
Beyond the confusion that this combination of roles might create, the rule is justified on at least three other bases: (1) it is necessary to prevent the possibility that, in addressing the jury, the lawyer will appear to vouch for his own credibility; (2) it will prevent the difficult situation that occurs when an opposing counsel must cross-examine a lawyer-adversary and seek to impeach his credibility; and (3) the rule also will prevent the implication that the testifying lawyer is distorting the truth for his/her client’s benefit.
Citing Culebras Enterprises Corp. v. Rivera-Rios, 846 F.2d 94, 99 (1st Cir. 1988), citing Bottaro v. Hatton Associates, 680 F.2d 895, 897 (2d Cir. 1982); International Electronics v. Flanzer, 527 F.2d 1288, 1294 (2d Cir. 1975); MacArthur v. Bank of New York, 524 F. Supp. 1205, 1208 (S.D.N.Y. 1981).
Authentication of ESI. Any person who gathers ESI must be able to authenticate and lay a foundation for that ESI. “Authentication” simply means that the person called to admit the ESI must prove that the ESI is what he or she claims it is. That person must be able to lay a foundation for the ESI.
To authenticate the evidence, the person called to testify may need to establish the following, depending upon what is sought to be introduced and the issues raised:
How the ESI was gathered.
Where the ESI was stored.
Who had access to it.
Establish the chain-of-custody
Whether other ESI was also located.
Whether a thorough search was conducted.
Whether the ESI sought to be introduced was altered from its original state.
Other essential details.
Who should be entrusted with the responsibility to gather the ESI? Who should take the witness stand to testify at trial? Certainly, the law firm’s paralegal, secretary and investigator should not conduct the ESI search unless that individual is qualified to establish the above-listed details and will lay the appropriate foundation for introduction of the ESI.
When gathering evidence it is usually not clear whether the evidence will be challenged when the party seeks to introduce it. Thus, the evidence should be gathered in a thoughtful manner that will withstand future challenges.
If ESI is gathered improperly and a party is unable to lay an appropriate foundation to authenticate the ESI, that evidence will not be admitted into evidence. This could be devastating to the case, depending on how critical the ESI was.
Just as experts are hired to provide opinions and establish essential facts, experts should be used to gather ESI. Ideally, the expert will have both technical are needed to search for, gather and introduce ESI.
The person who gathers ESI should also be a good witness. Parties must generally take witnesses as they come. There is very little control over who witnessed particular facts. However, when gathering evidence, parties are given the opportunity to select the witness. So, there should be some assurance that the person who gathers ESI will be a competent witness who can be depended upon. This witness may end up being the critical witness in the case.
Do-It-Yourself eDiscovery Software Tools. Some eDiscovery software tools are marketed directly to lawyers and this is clearly a terrible idea. A lawyer should not gather ESI if he wants to remain the attorney in the case or introduce the ESI into evidence. If the lawyer chooses to gather ESI, he may even be committing malpractice. Do-it-yourself software tools were intended to reduce the cost of eDiscovery and place direct control over the ESI in the hands of lawyers and business leaders. However, they may have unintended consequences.
The lawyer cannot use these tools to gather ESI or she may be disqualified as the lawyer in the case. Only a person qualified to testify at trial should use these tools to gather ESI. Ideally, this person would be an expert.
Thought must be given to who and how ESI should be gathered before it is obtained. A little bit of caution early will be rewarded later.
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