Dual Party eDiscovery

By October 23, 2018eDiscovery, Litigation

The use of digital forensic experts and vendors is a common and often vital part of litigation. Traditionally, each party may hire their own expert to conduct work on their behalf. Each expert will typically perform a forensic collection of the data, conduct an independent analysis, and relay the results to the respective party. This approach works, but often means there will be duplicative work, delays, and increased cost of overall discovery. A dual party engagement is a fresh alternative that can be arranged to mitigate or eliminate some of the downsides of the traditional approach. However, there are several key considerations before deciding which is best for your case.

Verifiable and Repeatable Processes

It is helpful to have a baseline knowledge and appreciation of the nature of true digital forensic processes. Operations performed according to stringent digital forensic standards are verifiable and repeatable, regardless of the expert used. Simply put, this means that a forensic collection completed by one qualified expert will produce the same outcome that it would if it were completed by another qualified expert. This universal standard for digital forensics, when truly appreciated, tends to increase the comfort level between contentious parties.

Issues with the Status Quo

When each party retains a digital forensics expert, each expert will often be working with the same set of data. In most cases, the data under examination or subject to review is from a computer or smartphone. Each expert will conduct his or her analysis and relay the results to the hiring party. Those results may also be disclosed to the opposing party as part of a production, testimony, or otherwise.

If there is a set of stipulated keywords or an analysis protocol that has been agreed upon by the parties, the issue of duplicative work is often compounded. Both experts may indeed be conducting the same examination, running the same keyword searches, and arriving at the same results. This duplication of work is problematic for two reasons: it increases the overall cost of the litigation and it can also extend the amount of time required for discovery. If one party’s expert has a larger backlog or fewer resources than the other, the examination results may be delivered to each party at significantly different times.

Advantages of Coordination

Coordination between two parties with respect to retaining a digital forensics expert alleviates many of the issues encountered when each party retains their own expert. If a dual party engagement is to be arranged, both parties need to agree on the following, at a minimum:

  • The expert or third-party vendor to use
  • The specific tasks contemplated by the agreement (conducting the collections, keyword searches and/or examination of the data)
  • The protocol for communication that will be used by all parties
  • How the responsibility for payment will be assigned.

Dual party engagements help to ensure that both parties agree on the type of analysis to be conducted, keyword lists to be used, how the results of the search and examination are to be disseminated, and any other factors that are important to the matter. In some cases, the results of the search and examination are disclosed to both parties simultaneously. In other cases, deadlines are put into place to govern the production of documents after both parties review for privilege.

The specifications of a dual party engagement are limited only by the flexibility of the parties. Dual party engagements allow for the analysis, searching, and other related tasks to be performed once and disseminated to both parties. This arrangement reduces the overall cost of litigation as compared to two independent experts conducting the same analysis for their retaining party. When the results are provided to both parties at the same time, neither party is disadvantaged by the delivery time of the results.

Considerations for Dual Party Engagements

While dual party engagements solve a number of issues faced by traditional engagements, there are some important considerations that the parties must weigh before going this route.

  • Are both parties comfortable with the expert’s qualifications and prior work? If both sides have previously worked with the expert, they are much more likely to have a greater comfort level with the expert and his or her ability.
  • Having a qualified expert is critically important since both sides could be relying on the results produced by the expert.
  • Dual Party engagement does not preclude one or both of the parties from arranging a third-party review of the results.

Another consideration that demands careful forethought in dual party engagements is the impact of the communication and delivery protocol.

  • If both parties are to receive the analysis results simultaneously, the results cannot be examined or redacted by one party prior to disclosing to the other party.
  • If any type of review or redaction may be necessary prior to one of the party’s review, the manner of delivery will need to be detailed in the dual party engagement letter.

In many cases, each party will review the searching and analysis results of their own data for privilege prior to approving the release to the opposing party. This is easily accomplished, but should be addressed in the contract to ensure both parties agree on the delivery protocol.

Conclusion

The dual party engagement approach is increasing in popularity as practitioners become more comfortable with the concepts and techniques employed by forensic experts during electronic discovery. These practitioners have come to recognize the inherent safeguards afforded by a trusted digital forensic expert and welcome the cost and time savings benefits of dual engagements.

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