The Leading Authority in
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by Lisa Fields
It's critical that expert witnesses understand the rules about the discoverability of expert materials and spoliation, says Paul Veith, a partner at Sidley Austin LLP, who recently gave a presentation on the subject at a Law Seminars International event in Chicago.
Why? Document spoliation could result in preclusion of testimony--or worse.
Ways in which spoliation could occur
Dr. Fred Cohen, Research Professor at the University of New Haven in forensic sciences, a member of Round Table Group's network of 95,000 experts, and founder of Fred Cohen & Associates, says, "The problem of spoliation starts with the fact that it's latent evidence. One way or the other, the only thing the jury is going to see is a representation, which may not fairly represent the actual evidence."
Digital forensic evidence has many chances for spoliation along the way. Here's an example: Traffic on a network exists for only a very brief time period, Cohen says. That data could be forged, encrypted, or not collected in a timely manner. Various audit trails might exist, so many separate logs might need to be accessed to collect all of the needed information. "If you don't act to retain audit trails, all you have is the file on the computer, which might have been broken into or otherwise altered." The longer the data sits, the more opportunity there is for spoliation.
The expert witness' role in spoliation prevention
Some documents created by expert witnesses (including drafts of their reports) must be furnished to the opposing legal team unless both sides decide otherwise. If such discoverable documents are destroyed by your expert witnesses, whether intentionally or unintentionally, there may be consequences, Veith says.
"If there is spoliation found, you could potentially face preclusion of the expert's testimony in whole or in part," he says. "You might face an order compelling you to attempt to forensically recover any deleted materials on computers. Sometimes a judge will instruct a jury that the deletion of a document should lead them to infer something unfavorable about the deleting party. And in some cases, spoliation can lead to the dismissal of a claim or defense."
To avoid problems, consider Veith's advice on spoliation when you begin working with a new expert witness:
1. Make an agreement.
"One common practice is coming to an agreement with the opposite party governing the discoverability of expert materials," says Veith.
"You make clear the dos and don'ts about what will be discoverable."
You may decide, for example, that rough drafts of expert reports won't exchange hands. "Attorneys may say, 'We know we'll each help our experts get their reports into shape because engineers don't write like attorneys,'" says Veith. "An agreement says: 'We'll do our work and you do yours without worrying about the paper trail.'"
Agreements can also dictate that written communications between experts and attorneys won't be produced by either side.
2. Limit your experts' writing.
It's not always possible to agree to alter the basic rule of discoverability, and sometimes an agreement doesn't make sense, says Veith.
In the absence of an agreement, "you have to be very careful that no documents are created that you wouldn't want the other side to see," he says.
You'll need to carefully explain to your expert witnesses what types of documents are off-limits.
3. Limit your own writing.
If drafts of reports and written communications with experts will be discoverable, be sure your written comments don't reveal your impressions of the case at hand.
"The attorney work-product doctrine generally protects the mental impressions of attorneys from disclosure," explains Veith, "but when an attorney contributes something to an expert's work that is fully discoverable, the attorney's thought then becomes discoverable. That's why attorneys like to enter agreements; they'd rather not expose their input to the light of day."
4. Spell out the rules to everyone involved.
Don't just tell your expert witness your expectations about discoverable expert materials; make sure he passes along the message to everyone who works in his office.
"Stress that the junior people on his team and your team are reading from the same hymnal," says Veith. "You might have a perfect understanding with the lead expert, but if your associate and his associate start communicating in a different way than had been agreed upon, it's all for naught."
Many of Round Table Group's expert witnesses have experience working with attorneys, so they should be familiar with the rules of discoverability. But even a seasoned expert can benefit from hearing your expectations about spoliation particular to your case.
Digital Forensics Experts
Cohen, a Round Table Group expert witness, stresses that you should seek digital forensics experts who meet the same high standards you would expect from a medical expert witness, for example. "You should look for someone with a great deal of specialized experience. The top tier should have a PhD, 30 years of experience, work with education and technology--but there are very few experts who meet those qualifications."
Round Table Group can help litigators seek out competent experts who have proper training and background in this arena.
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The Expert Advisor, Working With Experts
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This page contains a single entry by Chris Crone posted on October 31, 2007 10:12 AM.
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