Dear Friends,

This issue of The Expert Advisor contains valuable advice from two Round Table Group experts with vast experience in e-discovery and 3D exhibits. Our Featured Expert, Johnette Hassell, Ph.D., a national consultant and expert witness in computer forensics and e-discovery, explains how to use the 2006 e‑discovery amendments to the Federal Rules of Civil Procedure to your advantage. 

An article authored by Jeff Drake, principal of Drake Exhibits, explains how 3D exhibits can document and demonstrate the physical aspects of cases involving a variety of catastrophic events. He details the ways in which a Demonstrative Evidence Specialist works in tandem with the legal/expert team to create a visual strategy for use in presenting a case.

A third article discusses a recent federal district court order in a patent infringement case striking out those portions of an expert witness's report that were based on secret government studies.

The Expert Advisor is dedicated to providing our readers with assistance in locating, preparing, and utilizing experts. Please send your ideas for upcoming themes or articles to mswansiger@roundtablegroup.com.

Regards,

Russ W. Rosenzweig, CEO
Round Table Group, Inc

A federal district court in Delaware recently ruled, in a pre-trial order, that unsubstantiated portions of an expert witness's testimony in a patent infringement case were inadmissible.[1] The dispute involved two types of scintillator crystals used for medical purposes. The expert, a research scientist employed by Los Alamos National Security (LANS), stated that the two crystals were "different substances and the difference between their properties are such that they cannot be considered to be equivalent." He based his report, in part, on studies undertaken at the Los Alamos National Laboratory (LANL). LANS operates LANL for the Department of Energy.

The expert's work for LANS dealt with homeland protection and national security. Consequently, his use of government property was severely restricted, and he could not use work-related data in connection with this case. Moreover, he was barred from producing any LANL documents for use in the litigation.

Basing her decision on fundamental principles of fairness, the judge pointed out that confidential data cannot be used "as both a shield and a sword." The expert, who was precluded from sharing his work with the litigants, could not rely on his recollection of that work product in the lawsuit because "there clearly was no principled way to test his recollection and opinion."

By Jeff Drake[1]

Trial attorneys, insurers, investigators, and forensic experts dealing with cases that involve a variety of catastrophic events can benefit from the use of 3D exhibits that document and demonstrate the physical aspects of their cases.  Following a fire, explosion, construction accident, structural failure, or other incident, it is critical that the evidence be documented immediately in order to preserve a record of the event for trial. This is where a Demonstrative Evidence Specialist (DES) steps in.

The DES is a designer trained in problem solving, who works in tandem with the legal/expert team to create a visual strategy for use in presenting a case. The DES consults with the attorneys to learn about the evidence and theory of the case, and also meets with expert witnesses scheduled to testify at trial in order to learn the technical issues involved from their point of view. In many instances, the DES's mission is to illustrate the expert's testimony. Attorneys can look to the DES to support the litigation process in ways that far exceed the production of exhibits.
 
Investigation Process

The DES works with investigators in documenting a scene, interviewing witnesses, inspecting equipment, creating technically accurate, visually specific graphics, and providing illustrations for expert reports. For example, the DES may work with a fire protection engineer to understand and graphically depict the dynamics of a sprinkler system's performance and effectiveness during a fire that overwhelms the system due to the building design.
 
Interaction with Attorneys

The DES bolsters the attorney's case by creating preliminary exhibits for use in depositions; assisting during depositions by supplying pre-made graphic templates to help witnesses (i.e., provide scale components for use by the witness in recreating a kitchen layout before a fire); drawing artistic sketches of a witness's testimony during deposition (i.e., illustrating the position in which a nurse found a deceased patient in a bed-rail entrapment case); and producing a series of trial exhibits that effectively summarize the client's case.
 
Trial Testimony

There are two reasons for a DES to testify at trial:

1)      Defense: When the other side objects to the exhibits, the DES must be able to testify that they are fair and accurate in order for them to be entered into evidence.

2)      Offense: The DES is an ideal witness to introduce and explain the site to the judge and jury as the exhibits are introduced. Having gone through a painstaking process to create fair and accurate exhibits, the DES often knows the physical site better than any other member of the litigation team. 

The DES needs a thorough understanding of a situation to create the exhibits. Often, the work involves drawing or building the site piece by piece in a scale model or computer model. Litigators can capitalize on this knowledge and use it to great advantage in court. The attorney who best explains the physical aspects of a case to the court effectively owns the site.

The DES's testimony may include explaining the process used to recreate a site (listing such items as the technical documents, medical records, depositions, photographs, expert reports witness descriptions, and video footage that were reviewed); describing the reconstruction process (the CAD program used, the scale used, consultations with experts, and first-hand inspection of the site and/or equipment); and the medium or materials used in the final exhibits.
 
Design Process

The DES looks at a case through the eyes of a juror and asks the following questions:

    * How would this best be explained to me?
    * What do I want to see as the attorney is explaining this case to me?

Demonstrative evidence can take the form of graphic exhibits (both printed and electronic), scale models, and animations. The DES recommends which type of exhibit or combination of exhibits will most effectively illustrate the case. This recommendation takes into account the complexity of the case, the trial schedule, and the budget available for exhibits.

The DES integrates all of the available information into as few exhibits as possible to simplify the in-court presentation. A scale model is one of the most effective types of exhibits for accomplishing this purpose. Whether the model is of a building or a product, the jury members will have a much easier time understanding the circumstances at issue if they can see the physical aspects of the case in three dimensions, right in front of them. 3D models are used to explain orientation, terminology, physical relationships, size, and scale; they enable the jury to focus on the issues at hand without struggling to understand what the site looks like.

Two cases in which models prepared by Drake Exhibits were key factors in obtaining positive results for its clients are described below:

Malden Mills textile plant explosion and fire

In 1995, the Malden Mills textile manufacturing plant in Methuen, Massachusetts, was the site of a massive explosion and fire that resulted in dozens of injuries, financial losses totaling nearly $500 million, seven years of litigation, and one of the largest fire investigations in the region's history. Retained by the mill's property insurer, Commerce & Industry Insurance Co., Drake Exhibits assisted in all phases of the case-from site investigation, documentation, and reconstruction to demonstrative evidence services that included design and development of a series of graphic exhibits and a scale model.

The scale model of the portion of the Monomac building involved in the initial explosion and subsequent spread of the fire represented an area measuring over 200' long and over 100' wide, including structures outside the building and trailers parked next to the building. Flock line and dryer equipment inside were represented in detail. The scale of the model had to be large enough for people to easily view the detail and small enough to be transported to meetings and court hearings. The exhibit was designed to split into two sections, each measuring 7' long, 3' wide, and 3' tall.

The use of this model for case strategy meetings, witness interviews, court hearings, and mediation greatly simplified many of the tasks that the legal and expert teams had to accomplish in order to achieve a favorable settlement for the client.

Monomac Building Model
 
Child fatality - booster seat product liability

A child succumbed to injuries sustained in a car accident following the failure of the booster seat restraint in the vehicle in which he was riding. On behalf of the defense (the booster-seat manufacturer), Drake Exhibits located an exemplar of the Toyota Camry's rear section and prepared it as a trial exhibit to illustrate proper seatbelt-fastening methods. Drake also produced a model at three times the actual size of the car's seatbelt mechanism that dramatically illustrated how a foreign object (in this case, a rubber band) would cause the seatbelt to malfunction. Both exhibits were critical to a swift finding for the defense.

Camry Seat   Seatbelt Mechanism

[1] Mr. Drake is Principal of Drake Exhibits (www.drake-exhibits.com). He joined the Round Table Group in 2008.

By Johnette Hassell

Johnette Hassell, Ph.D., a national consultant and expert witness in computer forensics and e-discovery, has been on Round Table Group's list of experts since 2005. She is the founder and CEO of Electronic Evidence Retrieval, L.L.C.,[1] a full-service computer forensic and e-discovery firm that provides litigation support from initial case investigation, through discovery, and into trial.  Dr. Hassell is a highly acclaimed national speaker on e-discovery and computer forensics.

In this article, Dr. Hassell explains how to thread the e-discovery maze created by Rules 26-37, Federal Rules of Civil Procedure.

You Know You Need E-Discovery Help When ...

• You believe the other side is not giving you all that you are entitled to
• You know the opposition has a massive information infrastructure and you want to prevent them from burying you in discovery production  
• You have proof that the other side has not produced everything
• You have just received a production of 50,000 e-mails and 500,000 documents

Have any of these circumstances occurred in your practice? Or in the practice of anyone you know? The 2006 e‑discovery amendments to the Federal Rules of Civil Procedure place powerful tactics in the hands of litigators, tactics that you can use to address each of these issues, and many others.

Here's how e-discovery and computer forensic consultants and experts can help you when you encounter any of these situations.

You Believe They Are Not Giving You All That You Are Entitled To

You have requested the production of e-mail communications between two relevant parties. After much stalling, the other side produced a few printed e-mails, saying that's all they have. You suspect that many more messages exist. In a 30.b.6 deposition, you ask the deponent how she communicates with her secretary, particularly when she is traveling. She replies, "We use e-mail." You follow up with questions about e-mail servers and document retention and destruction policies, perhaps reminding the deponent about the serious sanctions (such as $1.6 billion) imposed for deleting and not producing relevant e-mails.

What are your options when the other side continues to resist? You can go to the court and get an order that the e-mails be produced, which often results in only a few more messages. Or, as I recommend, you can obtain an order allowing an e-discovery expert to examine the opposing side's computers and servers, and search for existing and deleted e-mails responsive to your request. If you take the latter tactic, you'll meet resistance in the form of claims of privilege, confidential information, trade secrets, copyrights, and so on. Fortunately, there is a viable solution to this problem. The e-discovery expert can extract e-mails and other materials that satisfy your selection criteria and provide a copy to the opposing party for review. The opposition would then produce responsive, non-privileged results and provide you with a privilege/redaction log. The e-discovery expert, of course, would retain the original materials and log--just to keep everything honest.

You Know the Opposition Has a Massive Information Infrastructure and You Want to Prevent Them from Burying You in Discovery Production

The opposition is large, perhaps multinational. You know there is going to be a lot of discovery produced, perhaps thousands of boxes of paper documents. In one of my cases (before enactment of the e-discovery amendments), the defendant produced 8,000 e-mails; however, he generated them "electronically" by printing and then scanning them into a fax-like format. The scanned files could not be searched for recipients, subjects, key words, or other criteria. To review an e-mail, someone had to open each file, read it, and enter it into a document-tracking system.

This is the type of situation in which having an experienced e-discovery expert on your team really pays off. The amendments call for very early discussions of e-discovery, specifically directing attorneys to address the form of electronically stored information (ESI) production at the Rule 26 "Meet and Confer." Furthermore, counsel are directed to produce a list of persons with custody and control of ESI and a list, "by location and category," of all the ESI they expect to rely on in their case--and to produce this list at least 21 days before the Rule 26 conference. You need to be ready by knowing all that the amendments allow in e-discovery.

Specifying the Form of Production

As a default, the e-discovery amendments provide for the production of electronic documents in the form in which they are normally kept and used. The amendments also give you the right to request the form in which the results are to be produced; thus, your first step in protecting against the paper blizzard is to inform opposing counsel that you will request electronic production. Each discovery request should specify the form in which it should be produced. I usually suggest native form--the form in which the documents or information was originally created and stored.  Courts have been inconsistent, but at least one (Autotech Techs. Ltd. P'ship v. Automationdirect.com, Inc.) held that if you did not initially request the production in electronic form, you cannot go back and obtain it in electronic form after it was produced in a reasonably useful, albeit paper, form.

If you are the producer and the requester did not specify the form, the amendments require you to describe the form you will use. In contrast to Autotech, another court (White v. Graceland Coll. Ctr. for Prof'l Dev. & Lifelong Learning, Inc.) required the producer to produce e-mails a second time, in electronic form, after producing only printed e-mails in the first production.

The amendments specifically state that if the producing party can search the documents, the receiving side must also have that ability. They also allow native format to be converted into some "reasonably usable" form. In my case with the 8,000 e-mails, after I complained about the form of the initial delivery, the next production came in a specialized .pdf format that was not searchable. You can thwart this type of obstructionist tactic by stating in your request that any searchability in the original format must be maintained.

I believe that such searchability is important in discovery management. If documents can be searched, they can be electronically analyzed and organized, thereby reducing your time and your client's costs. I will discuss some specific electronic analysis later in this article.

Formulating Your Request for Production

Your second chance at preventing an over-inclusive production lies in carefully crafting selection criteria in your discovery request. Attorneys used to request "all documents relating to the contract between...." People went through their files and pulled what seemed to be responsive. Now, because of the sheer volume of ESI, we want to use electronic tools to identify responsive electronic documents.

The challenge is in answering the question, "What criteria do the tools use?" Initially, we used simple search terms such as "All files containing any of the following words: MySecretSauce, Mr. Bad Guy, Big Competitor, Smith Contract." But that approach often yields too many or too few hits. If, for example, "MySecretSauce" appears in the company's e-mail banner, every corporate e-mail would yield a hit.  Furthermore, a search for "Smith Contract" may yield too many hits if Mr. Smith is a party to many contracts, most of them unrelated to your litigation. Also, an e-mail might refer to the Smith "matter," "agreement," or "issue," and never use the word "contract."

While there is no magic bullet in this situation, it is a good time to call in an experienced e-discovery consultant.

In recognition of these issues, judges are calling for collaboration between the parties in developing selection criteria and, importantly, testing those criteria. In fact, the e-discovery amendments specifically provide for such testing.

Some judges, for example Magistrate Judge John Facciola in U.S. v. O'Keefe and Equity Analytics v. Lundin and Magistrate Judge Paul Grimm in Victor Stanley, Inc. v. Creative Pipe, Inc., are getting savvy about selection criteria, with Judge Grimm famously saying "all keyword searches are not created equal."

You Know That They Have Not Produced Everything

You have a copy of a relevant, responsive document or e-mail that the opposing side has not produced. You included search criteria in your production request that should have gotten a hit, but the item has not been produced.

This is another situation in which you need to call for a complete forensic examination of the opposition's computers and servers. As indicated earlier, such a request will probably be met with great resistance. But a forensic examination can recover a wealth of evidence not otherwise available, such as deleted files, file fragments that demonstrate the prior presence of files, attempts to thwart discovery by the use of secure overwriting software, and more.

You Have Just Received an Electronic Production of 50,000 E-Mails and 500,000 Documents

Your approach to reviewing this production may well depend on the size of the case. Consider two situations:

First, suppose you have a huge case involving hundreds of millions of dollars. There are well-known electronic e-discovery tools that process e-mails, attachments, and documents and allow you to view the data in many ways. They can identify e-mail conversations, shared documents, common-term usage and much, much more. Such tools can cost several hundred dollars per gigabyte for processing the discovery and may be cost-prohibitive for smaller cases. These tools are also valuable in the case-assessment phase to help attorneys understand the nature of their client's data.

Second, consider a case whose value does not justify an expenditure of the millions of dollars needed for the services described above. In such situations there are ways to significantly reduce the cost of analysis. Note that employees within a company frequently have multiple copies of the same documents and e-mails (each has his/her own copy of a document; each may have multiple versions of the same document, etc.). Thus, a first step in reducing the size of the production is to identify duplicate copies of the same information, a process known as deduping. Obviously, you only have to review a duplicate document once; however, the mere presence of a duplicate may be relevant to your case. For example, it may be of great interest that an unauthorized employee has a copy of a proprietary design document.

There is also an emerging technology that identifies near-duplicate documents. Near-duplicate documents are similar within a certain percentage threshold, such as two similar MS Word documents (the original and an edited version), or an e-mail and the response to that e-mail. Organizing electronic files into sets of near-duplicates reduces the time needed to review the documents and helps assure consistency in their analysis. It also provides insight into the evolution of documents and their various changes along a timeline. Typical charges for near-duplicate analysis are cents per document analyzed.

Because of forwarding, "cc:-ing," and replying, an e-mail collection has a more complex structure than a collection of other documents. E-mail thread analysis is used to organize e-mails into meaningful groups, such as a chain of e-mails in which each one contains its predecessor. Again, the reviewer saves time and gains consistency by reviewing a thread as an entity, rather than each e-mail individually. Attachments remain associated with their e-mail message, facilitating a "who-knew-what-when" analysis. An additional benefit is that missing e-mails can be identified, often leading, as it did in one of my cases, to the "smoking gun."  As with near-duplicate analysis, typical charges are cents per e-mail analyzed.

Summary

The e-discovery amendments address many more issues, some involving legal theory and others dealing with such practical concepts as metadata and information architectures.