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Saturday, Sep 23, 2023

Computer Forensics Plays Role in Litigation

When two attorneys charged with misappropriating trade secrets denied any wrongdoing, David Gurnick headed straight for a computer expert. Gurnick, an attorney and shareholder at Lewitt, Hackman, Shapiro, Marshall & Harlan LLP in Encino, wanted to show that the pair had tried to take away the clients of the law firm he was representing when they quit the firm. And while there may not have been any paper documents to support his client’s charges, the firm’s computer hard drive told them plenty. “They went into the computer system over a series of months and downloaded the firm’s mailing list, and they had done it secretly and it all came out in discovery,” Gurnick recalled. Gurnick won the case, which went all the way up to the California Supreme Court, this summer, in part at least because of evidence turned up in what is known as electronic discovery, and its close cousin, computer forensics, practices which are becoming an increasingly important tool in litigation matters. Paper documents can be shredded. Witness testimony can be discredited. But what is stored on a computer remains in some form for as long as the system exists, and searching deleted or modified files, e-mail correspondence and other digital detritus has been known to be the smoking gun that made or lost the case. “We’ve had some situations where our clients have taken disciplinary action against employees and the employee sues the company, and we go to their computers and we’re able to have our experts find out they scanned porn sites,” said John Golper, senior partner with Ballard Rosenberg Golper & Savitt LLP in Universal City. “They usually end up folding their tents and say they’ll drop their law suits.” Electronic discovery, which involves uncovering information by accessing or reconstructing information stored on a computer, even if it has been deleted or changed, played a significant role in the Microsoft antitrust litigation, the investigation of former President Clinton and other high profile cases. But increasingly these methods are also being used routinely in employment litigation, fraud, copyright and intellectual property cases and even divorce cases in family courts. Finding alterations It is believed that some 90 percent of documents produced in a work setting are now electronic. Using computer forensics, the parties in a lawsuit can not only retrieve documents or e-mails, they can also trace alterations made to documents or access earlier versions, perhaps with notes and comments from those who have reviewed the documents through the drafts prepared. “Companies and people who wind up having a problem are surprised to learn how much electronic data exists to document what happened,” said Scott Cooper, managing director of INSYNC Consulting Group Inc., a Sherman Oaks-based company that performs computer forensics. “And it’s that realization that’s giving ammunition to attorneys in the discovery process.” In some cases, the cost of computer forensics can run into the hundreds of thousands of dollars, particularly when events go back so far that the company had changed or modified computer systems since the dates involved. And those charges may not necessarily be assigned to the party seeking the information, attorneys said. It comes down to not only who is responsible but also which of the parties can afford to assume the cost. “If you’ve got some employee that doesn’t have a whole lot of assets suing a major corporation and they make a major case to a judge that the corporation can more readily bear the cost or they can cite any bad faith on the part of the corporation, a lot of judges will stick it to the corporation,” said Golper. But in many other cases, it can take less time to retrieve these electronic documents than it might to search paper records, and for that reason, attorneys say they are now routinely asking for electronic documents. “As a matter of course we’re asking for production of not only the printed documents but e-mails and drafts from the computer system,” said Gurnick, “and we also see those (requests) routinely when we’re responding to discovery.” Although fees range, on average a computer expert will charge about $100 an hour and many routine requests may not take more than 10 or 20 hours, Gurnick added. Revealing information At the same time, the information that can be gleaned from a digital search can be far more helpful to the lawyer’s efforts. “The party may receive e-mails and electronic drafts which contain comments or observations that were made in a more relaxed way that may be more revealing of someone’s true state of mind,” Gurnick said. “In the Microsoft anti-trust trial, there were e-mails that were produced in evidence that demonstrated monopolistic intent.” E-mail correspondence nailed a case that Cooper worked on and resulted in a large settlement. In that situation two friends who started a business together ended up in court disputing how much of the business one of the partners was entitled to. One friend told the other via e-mail that he would give him 15 percent of the company for his marketing help, but a few years later, when he sold the company for $640 million, he claimed the deal was for a 5 percent stake. “Both provided documents supporting their versions,” Cooper recalled. “It was literally the $64 million question,” the difference between what the company’s founder said the stake was worth and what the friend who handled the marketing was claiming. Cooper’s firm’s computer forensics uncovered alterations the company founder had made to the documents he had submitted, netting the partner his full $96 million share of the proceeds. Attorneys say that war stories like these are not only cautionary tales for their clients, they are also changing the way companies manage their internal communications. In some cases companies are not keeping backup data longer than say six months in order to avoid having to reconstruct years of data. And law firms are holding proactive meetings both internally and with their clients to increase awareness of the legal pitfalls inherent in an electronic age. “We talk about it,” said James R. Felton, a partner at Greenberg & Bass. “What you say is, ‘picture yourself on the witness stand and someone gives you this e-mail and says please explain what you were thinking.’ You have to talk about that stuff because until you see it, you don’t know how powerful it is.”

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