Creative Places to Find a Smoking Gun

By on June 21, 2017

Kent C. Sullivan and Luke J. Gilman, Jackson Walker LLP

When it comes to electronic discovery, you never know where the proverbial smoking gun might be hiding. It could be in a smartphone app, a cloud-hosted third-party service or a long-forgotten thumb drive. This article explores several examples of creative approaches to finding crucial information. They illustrate the importance of closing the loop on potential data sources through witness interviews and examination of company practices (authorized or not), including the individual work habits of potential witnesses, in order to craft a robust, defensible and cost-effective strategy.

In one case, early witness interviews with an employee identified a key source of communications that might otherwise have been missed. The importance of getting an on-the-ground view of potential sources of information was illustrated in another case involving a contract left in a copier. Social media, third-party document storage, third-party video hosts, project management software, accounting software, and even geolocation data are all sources of potentially relevant data.

A flexible and responsive approach to electronic discovery starts by standing in the shoes of each potentially relevant player. With a combination of witness interviews, computer forensic analysis, and a ground-level view from a particular witness perspective, counsel can quickly and effectively tailor electronic discovery for the case at hand. By taking an active approach, it is possible to discover evidence that might otherwise be overlooked or given a lower priority while also slashing the overall budget by eliminating duplicative or irrelevant document collection.

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