Focus: Forensic investigators invited to meet and confer

As lawyers become more comfortable with the meet-and-confer provisions of the Rules of Civil Procedure, they''re starting to recognize the importance of bringing a knowledgeable guest along to the discussions.

As a result, forensic experts are taking on a handholding role when it comes to ensuring that parties understand the technicalities in the electronic-discovery process.

"Lawyers often don't have the technical expertise necessary to advance the discussions without ready access to an expert," says Martin Felsky, an information governance lawyer at Harrington LLP in Oakville, Ont., who has attended meet-and-confer sessions both as counsel and as an e-discovery consultant who's not part of the legal team.

"You are dealing with issues that are legal, strategic, and technical. If, whenever a technical issue comes up, you have to say, 'I'll refer it to my expert and get back to you,' it's not very efficient."

Susan Wortzman of Wortzman Nickle Professional Corp. says it makes a lot of sense to get the right people in the room at the same time, particularly for more complex cases. Recently, a law firm retained a lawyer from her firm to advise on e-discovery at the meeting as well as a forensic engineer to give advice on collection.

"There is no reason not to do this," says Wortzman. "Nothing in the Rules limits the number of people there. A meet-and-confer session is generally very informal, and the courts want it to be efficient and effective."

Felsky believes the practice can definitely have advantages with proper planning. "You can have a high-level discussion on certain things. For example, the other side may raise the issue of backup tapes.

If you are well-briefed on the client's backup arrangements, it is better to have the person responsible for IT talk directly to the person from the other side. When there is no expert or only an expert on one side, no one can propose anything. You can deal with the issue separately later, but that's not valuable."

Wortzman agrees. "You need IT people there to actually have a meaningful discussion when dealing with the IT infrastructure of a massive company.

The experts can talk the same language and really get the issue resolved, especially when it's not the normal exchange of e-mails and loose files but systems data or data stored in an active database that you have to make accessible somehow."

Counsel in Canada are slowly recognizing the benefits, as their counterparts in the United States have done before them, but Felsky warns there are risks and pitfalls to avoid.

"The meet and confer is usually held on a without-prejudice basis, like a pretrial conference where you are free to talk about issues.

However, once something is said, it's out there. Even though you are trying to resolve the matter and you should be free to discuss things, it is still part of the adversarial system. The other side could backtrack and use it against you."

He believes the attending expert needs to be briefed like any witness. "As a general rule of thumb, any non-lawyer present and certainly any representative of the company should be well briefed as to the nature of a meet and confer and told never to volunteer information.

Generally, they are there to advise the lawyer who's conducting the meeting as to the feasibility or otherwise of certain options rather than to volunteer information."

Wortzman is adamant that parties should forewarn the other side who's coming. "Tell the other side, 'Please bring your forensic expert.' It shouldn't be a secret. Tell them who you're bringing, why you're bringing them, and that this is the agenda."

With experts on both sides, Wortzman believes the discussions can progress much further and suggests an expert can help come up with a discovery plan or counter the other side's protestations that the evidence isn't obtainable or producible.

An expert's presence may also enable the lawyers to sign off on the search terms or raise the prospect of using one of the electronic tools that significantly reduce the cost of the manual review.

Felsky finds that a lot of lawyers aren't fully aware of the different types of IT expertise and backgrounds. "In an IT department, there are some people who are business analysts, network administrators, backup specialists or communications people.

Sometimes, lawyers say, 'I need an IT person.' That's way too general. You may just need an e-discovery consultant or a representative from the vendor working on the file with the client.

Some clients are sophisticated. They may have a network adviser or a project manager responsible for litigation response. It depends on the nature of the case."

Felsky also believes it's critical to have already had an internal meeting about the e-discovery plan. "One of the pitfalls, if you haven't already done the planning with the client, is that you don't know the client's vulnerabilities. The expert becomes a liability. If you haven't done the planning, you should just have the lawyers there."

As a result, if a law firm does decide to expand the team in this way, Felsky says it's important that the lawyer has a lot of confidence that the expert chosen meets a couple of key criteria:

"That they have sensitivity to the issues of the case and won't commit to something that is strategically against what the lawyers are advising. They must have credibility and the ability to speak effectively at the meeting.

A junior IT support person may not have the credibility you need. If you find out who's coming from the other side, you should have someone of commensurate ability."

Felsky has been to a meeting where there was a technology expert on the other side but the lawyers were reluctant to have their expert say anything. "They did agree to allow the experts to talk directly after the parameters had been set."

Felsky describes this approach as being like a stepping-stone from having no expert at all. "The expert can simply audit the meeting and take notes and advise but not say anything. The expert can explain later what happened or have a sidebar conversation.

The whole purpose of a meet and confer is to have an agreement, not to raise other issues for dispute, so anything that can help you to huddle and propose compromises is a help."

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