Requesting Party Considerations

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Requesting Party Considerations in Pursuit of Digital Evidence

“The one who first occupies the battlefield awaiting the enemy is at ease. The one who comes later and rushes into battle is fatigued.”

-Sun Tzu- Year 4 A.D.

Electronic Evidence Services for Attorneys

The Plaintiff (Discovering Party) often has the upper hand at determining precisely when a lawsuit is to be filed. This advantage should not be squandered if it is important for the client to prevail in their claim against their opponent. Therefore, CyberControls strongly advocates that counsel for the corporate plaintiff be mindful of the pre-emptive time advantage available to them, before filing the actual lawsuit by initiating some of the following actions:

	Protecting Your Client From A Digital Evidence Discovery (DED) Attack - Suffice to say that the probability exists that once you’ve discussed your intentions to formally request electronic discovery of active and deleted data in the pre-trial conference, opposing counsel will soon thereafter be filing a retaliatory "mirror image" request against your client. With this in mind, CyberControls digital evidence experts could already have assisted the litigant in developing a defensive strategy long before the producing party began contemplating its retaliatory request.

	Conduct Pre-Discovery Investigation on Your Opponent’s Computer Systems - CyberControls will provide an outline of all areas that need to be researched in order to collect sufficient intelligence on the IT infrastructure of your adversary’s client. This information will likely contribute to the approach and formulation of interrogatories for upcoming key witness depositions.

	Notification to Opposing Counsel To Preserve Electronic Evidence - CyberControls will help you in drafting a letter of notification to your adversary to preserve electronic evidence as soon as litigation commences or sooner if feasible. This pre-emptive maneuver will put your opponent on notice to the fact that all precautions must be taken to prevent any spoliation of the evidence.

	Drafting of Interrogatory Questions to IT Personnel - CyberControls will assist in the drafting of specific questions pertaining to the IT Infrastructure within the business organization as well as detailed inquiries into the information security policies and procedures as well as document retention and destruction procedures. If need be, a CyberControls’ IT specialist can assist in the actual deposition to ask follow-up questions to specific responses that require further exploration. Our legal consultants will also assist in matters concerning Federal Rule 26(a)(1)(B), Rule 30(b)(6) deposition requests with particularity as it relates to the collection of computer stored data files-both active and deleted if required.

	Discovery Request Assistance - CyberControls will provide two areas of support in assisting the litigator in drafting the discovery request; both technical as well as legal. The technical area of support will be focused on the precise storage media and methods of evidence acquisition being sought after to avoid objections on the grounds of vagueness or undue burden. On the legal consulting side, our attorney resources are able to provide valuable insight and perspective into available options such as Federal Rule 26(a)(1)(B), and preparation for pretrial conference required by Federal Rule of Civil Procedure 16 with particularity as it relates to the collection of computer stored data files-both active and deleted if required.

With 93% of all written data stored on computers, the hope of finding the “smoking gun” document in hundreds of boxes of printed documents is a thing of the past. Requesting party attorneys can gain significant advantage by integrating digital forensics into their e-discovery requests. For the attorney who will take the time to learn what electronic evidence is, how to find it, and what it takes to recover deleted data, a dramatic advantage will be gained in their cases.

For a FREE, no obligation initial consultation of how your firm can utilize CyberControls professional services, please call us at 1-847-756-4890.