Let me share with you the interesting case of Blythe v. Bell, (2012 NCBC 42 (N.C. Super. Ct. 2012, http://www.ncbusinesscourt.net/opinions/2012_NCBC_42.pdf). There, defendants engaged an outside “expert,” Tom Scott, owner of Computer Ants, for e-discovery work. Defendants’ counsel failed to conduct any intervening review Scotts’ work. Instead, defendants relied exclusively on Scott to conduct a privilege review, among other things.
Unfortunately for defendants, Scott had “never provided any forensic computer services in the context of a lawsuit,” and had never “been engaged as a computer expert or provided an opinion in any legal proceeding.” Rather, Scott had worked as a “truck driver, a Bass Pro Shop Security Manager, a respiratory therapist, and a financial auditor for a retail seller.” Put differently, Scott had no experience in e-discovery.
The Court found that Scotts’ paucity of qualifications to serve as an e-discovery “expert” rendered the defendants’ actions particularly unreasonable. Consequently, defendants produced nearly 2,000 pages of otherwise privileged documents to the plaintiff.
Lesson here is that, if you have e-discovery issue or digital forensics issue, don’t call the computer dude or dudette you use to fix your slow computer, or printer, or to set up your wireless network. That person and a digital forensics expert or e-discovery consultant will rarely be one and the same.
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The author, Sean L. Harrington, is a law student and digital forensics examiner, information security professional, and e-discovery, trial, and litigation consultant with the private practice firm of Attorney Client Privilege, LLC, and a risk management team lead for US Bank. Harrington holds the MCSE, CISSP, CHFI, CSOXP, and LexisNexis CaseMap support certifications, served on the board of the Minnesota Chapter of the High Technology Crime Investigation Association in 2011, is a member of Infragard, a member of Century College’s Computer Forensics Advisory Board and [erstwhile] Investigative Sciences for Law Enforcement Technology (ISLET) board, and is a council member of the Minnesota State Bar Association (MSBA) Computer & Technology Law Section.