By Susan Cushing - Published in Attorney At Law Magazine, DC Suburbs Premier 2017
A brand-new technology, DNA evidence, ignited the legal scene during the 1980s. Although it was a highly complicated science that most juries couldn’t quite wrap their minds around, it wasn’t long before the use of DNA evidence was hailed as the new panacea for a sometimes-imperfect legal system.
Fast-forward to the 21st century and the explosion of advanced technology: gadgets and innovations only imagined in sci-fi movies are now routinely utilized by everyone from teens to CEOs, and the legal system is once again in the throes of a revolution. According to attorney Diane Kilcoyne, the trouble is many lawyers are slow to jump on the bandwagon.
“While everybody has adapted to using technology, the legal world is lagging behind,” says Kilcoyne, principal and founder of ESI Group, LLC. “We’re in a similar place we once were with DNA evidence— many attorneys don’t understand the new forms of electronic data; their experience ends with emails and texts. That’s where I fit in, and where I find my excitement, connecting lawyers with what they need to know about social media and other new forms of electronic data, so that they can find and get crucial evidence presented in court.”
Kilcoyne started her career as a litigator, first as a prosecutor and then at several small firms in the greater D.C. area. As technology became more of a significant portion of the litigation she was involved in, she saw the writing on the wall, making sure that she learned all she could to stay at the forefront of technology and the law. “I’ve always been interested in technology and computers,” Kilcoyne says. “When I was in college the industry was still sort of in its infancy, but I took all the programming classes that were available. I found it fascinating.” Then, in law school, she worked as a student trainer for Westlaw’s online legal research tool, and saw how a computer can vastly change the way attorneys practice law.
“The time-saving factor alone was incredible,” she continues. “Instead of spending hours in a law library, you could simply type in a word and find all the research materials you need.” Similar to the way legal research changed in the ’90s, technology is continuing to change the way evidence is found and gathered.
“The electronics we use every day store a certain amount of data. At any given minute of any day, there are millions of emails exchanged, and ‘likes’ and tweets being posted, as well as other data points from smart watches, Fitbits, and other smart appliances, all of which could potentially be evidence in a trial. The problem is for most attorneys and smaller firms, this kind of e-discovery is still considered out of reach, due to the intricacy of the technology involved, which is perceived to have a high price point.”
With this mindset, Kilcoyne created ESI Group, a small, nimble firm that makes affordable, defensible e-discovery available to attorneys and small firms. Kilcoyne advises clients on the use of technology to reduce both the risk and the cost of e-discovery. “Because the technology is continually advancing, we are constantly researching and evaluating new technology tools and incorporating them into our wheelhouse, so that small law firms can have the same access to the knowledge, technology and analytics as the large firms do.”
Painting it as something of a David versus Goliath situation, Kilcoyne says, “I saw a great disparity between the level of sophistication and the quality of discovery production sets that were coming from the smaller firms versus those coming from the larger ones. This, of course, was ultimately a disadvantage for the clients of the small firms. I launched my e-discovery practice to be an advocate for the smaller firms and their clients, and to make these technological advances more affordable and available to them. Having been involved in e-discovery for over a decade, and having built an e-discovery department in a small law firm, I have developed efficient mechanisms to help other attorneys with this process. We guide them on what they need, depending on the case size and other factors. They benefit from the same quality technology and expertise typically only available to larger practices. It really levels the playing field.”
AGE OF E-DISCOVERY
While e-discovery is not new, it is constantly evolving – from email to social media, texts and smart technology data – yet too many attorneys are still reluctant to explore these uncharted waters. Kilcoyne firmly believes this is not only unfortunate but unacceptable. “It has been well over 10 years now since the first Zubulake decision, in which Judge Shira Scheindlin expounded on the necessity of proper electronic evidence preservation, collection and production – which is what e-discovery consists of. Attorneys need to get up to speed.”
A respected author, educator and speaker on the topics of preservation obligations, e-discovery and records management, Kilcoyne consults on litigation holds and the e-discovery process, designing and implementing plans in the context of complex litigation, arbitration and other disputes.
“I love finding evidence,” she says, “I love discovering what really happened. In litigation, you always have two sides, each one arguing something different. There’s always the question: ‘What really happened?’ Often it’s out there, and actually in writing. I love being able to find that.”
Kilcoyne’s enthusiasm is as much for the discovery process itself as the impact that information has on the case. She describes a lawsuit involving the enforcement of a disputed loan agreement. It turned out that the client’s founder, by then semi-retired and displaying obvious signs of dementia, had taken out the loan without the other officers’ knowledge. The attorneys argued that the loan was not valid because the defendant knew of the gentleman’s age and diminished mental capacity.
“Our discovery process led us to an email in which the bank plainly stated it was aware that he was suffering from dementia, yet allowed him to sign for the loan anyway,” Kilcoyne explains. “Finding that one email, something comparable to a needle in a haystack, completely changed the outcome of that trial.”
“I really love my work,” she says, “it’s fun playing detective. My favorite thing is to learn new things, so I’m in heaven right now.”
“Many times, attorneys try to shy away from e-discovery because they are not tech-savvy,” says Kilcoyne. “However, two recent ethics opinions have held that it is malpractice to engage in litigation if attorneys don’t either understand e-discovery themselves or hire someone who knows what they’re doing. This is pretty earth-shattering for many lawyers, because up to now, so many have just used ignorance as an excuse.”
A digital version of the original Attorney At Law article is available for download.
ESI Group serves as e-discovery counsel and expert to law firms, offering the knowledge, skills, and experience in the field of e-discovery that is uncommon to most law firms. E-discovery is more than technology, it’s how you prepare data to be a star witness. ESI Group supports attorneys through trial with litigation consultation, strategy development, and insight in data preparation and management.
Social media has become a crucial, over-arching, and integral part of life today. Facebook, Twitter, LinkedIn, Pinterest, YouTube, WhatsApp and Instagram are just a few of the many social media platforms in use today – and are impacting the way humans interface with each other. A Pew study in 2015 showed that 74% of all Internet users use social media on a daily basis – a figure which has undoubtedly grown since then. As a result, attorneys must appreciate the impact of social media on their clients and on their legal cases-- failure to understand how social media can impact clients’ cases could lead to a malpractice complaint. Savvy attorneys will want to take advantage of the wealth of information available on social media to advance their client’s positions, as well as potentially discredit the opposition or unfavorable witnesses. Attorneys need to be aware of the vast number of social media sites that contain potentially relevant information, and how to advise their clients on preservation, collection, and how to get this data admitted in court. Screen shots are not sufficient any longer, as the data cannot be effectively captured that way (video content, comments, “likes,” emoticons, and embedded links to other sites will not be captured appropriately.) Attorneys need to understand the proper mechanisms for preservation and ultimately the use of such data in court.
Diane Kilcoyne, Esq. of ESI Group (in collaboration with Jennifer Ellis, Esq. of Lowenthal & Abrams, PC) recently presented on E-discovery of Social Media at the 2017 Maryland State Bar Association Annual Meeting in Ocean City, Maryland. Contact ESI Group for more information.
Two recent rule changes from the Advisory Committee on Evidence, which were approved and will take effect on December 1, 2017, are designed to assist with authentication of electronic evidence. The first new rule, Rule 902(13), provides a certification process for digital information produced by a computer system or process, which is somewhat analogous to Rule 902(11)’s provision for the certification of business records. The other new rule, Rule 902(14), governs the self-authentication of copies of electronic information, permitting the authentication of a file by using its hash value, which is a unique identifier establishing that an electronic copy of a piece of data is digitally equivalent to the original, thus eliminating the need for further authentication by witness testimony, and eliminating any ensuing legal battles on the authenticity of the data.
Attorneys must, however, remember that ascertaining the authenticity of digital evidence is only the first step in determining admissibility. But these new rules will assist the administration of justice by eliminating the need for disputes over technology and between technologists, at least where the collection of evidence was properly certified.
WHAT TO CONSIDER
When evaluating the cost-benefit of the rule changes it is important to keep in mind that you can no longer rely on the client to self-collect its ESI. Rather you must bring in a “qualified person” to make or supervise the collection and properly prepare for litigation. For more information, listen to Diane Kilcoyne's webinar presented at American University Washington College of Law. ESI Group provides complete e-discovery counsel, data management and processing required to prove your case. Contact us for more information on our services.