From the very start, every plaintiff will be focused on formulating their discovery requests on an ongoing basis as new details come to light. Often times, this one-sided concentration on one's opponent will overshadow the importance of a rigorous and timely implementation of a Preservation-Hold for the plaintiff as well. What's good for the goose is for the gander applies. This becomes painfully clear as CyberControls assists its plaintiff clientele in drafting Preservation-Hold Notification letters, in which a high degree of specificity is stipulated as it relates to one's opponent's best efforts to perform an adequate litigation-hold on all known sources of responsive, relevant ESI. This is an area where CyberControls can assist counsel in meeting all of their litigation-hold obligations, so that in the event that a mirror image counter-request for production arrives, their client is prepared.

This is also an opportune time to position CyberControls as outside consultant to a client's IT contacts throughout the litigation.  Our technologists will help to explain the importance of maintaining proper chain-of-custody procedures, and curtailing an inclinations to perform in-house investigations that are not computer forensically sound that would otherwise jeopardize the admissibility of ESI into court.

We at CyberControls are strong believers in the collaborative approach when it comes to working with our clients. We are not attorneys but we understand state and federal rules of evidence, which every one of CyberControls' team members is ever mindful of when performing their work. 

Frequently, the necessity to search for and evaluate the actions and conduct of certain individuals can be identified by the computer forensic examination of devices once in the custody of those same individuals.  

As an example: CyberControls' computer technologists are available to perform initial searches and examinations of computers, mobile phones, and other devices that were in the custody of recently departed ex-employees to determine whether any unauthorized activities and/or misappropriation of proprietary information may have occurred. These early-stage forensic examinations will often reveal whether external media devices were connected to the work computer for copying of electronic documents or if the ex-employee accessed and attached company files to a private e-mail account for later retrieval.  This type of information is often used  to support a TRO or a motion to perform a computer inspection of other devices used by the same person.

In certain scenarios where e-Discovery disputes have hit an impasse, one or both parties or even the court may conclude that it is more appropriate to retain the services of a master neutral third-party expert to work with both parties to resolve the discovery disputes in a fair and objective manner while being directly accountable to the court.  This is a role that CyberControls' digital forensics experts have been designated by courts in different jurisdictions to perform. 

In federal court, the F.R.C.P. Rule 26(f), meet-and-confer pretrial conference is no longer something to be ignored. Both parties in a dispute are required to come prepared to discuss and disclose relevant information and details about electronically stored information (ESI) as it relates to their mutual clients. Many state courts have been quick to adopt most if not all of the Rule 26(f) meet-and-confer requirements, while other states continue to explore other options at reducing the number of e-discovery disputes requiring judicial intervention.

Suffice to say, that a majority of e-discovery disputes arise from either little if any dialog between opposing parties or one side's lack of research and preparation before the meet-and-confer session. While in the past this may actually have been the result of some intentional strategy by one party, the courts have grown weary of having to weigh in on mundane aspects of e-discovery disputes that should have been resolved long before. Neither party walks away happy after a judge has no choice but to render a ruling on how routine discovery will take place.

CyberControls is capable of constructing the outline for an effective meet-and-confer session that support the objectives of a requesting party along with the necessary details and references of the client's IT infrastructure should that be a topic of interest to the opposing party.  As CyberControls' litigation support consultants are requested on occasion to attend a meet-and-confer to assist counsel, this is an option as well.  For more information on Meet-and-Confer Services, press here:

An E-Discovery Plan can be a formal document to be made available to the court or opposing counsel at the meet-and-confer session. Or it may just be an attorney/client work-product device to clarify specific objectives of e-discovery in the overall case strategy. Should an e-discovery dispute arise that cannot be resolved by both parties, the court may request such a plan from both parties before deliberating over an e-discovery dispute.

CyberControls can play a role in providing the technical explanations and rationale behind specific e-discovery requests being proposed by the requesting party. CyberControls can also provide verifiable estimates and methodologies associated with the e-discovery process and pre-production options available to the producing party to counter unsubstantiated arguments of undue burden or excessive costs.   

It is imperative that a requesting party not offend the court with a non-stop flow of discovery motions that can be misconstrued as a meddlesome hammer upon one's opponent without any clear purpose or factual basis. Overly broad production requests or computer inspection requests without careful deliberation with a computer evidence expert is extremely risky and ill advised.  

At CyberControls, our litigation support consultants have years of experience in assisting litigators with the appropriate technical/legal terminology used in federal/state court approved inspection protocols which can help things move forward more quickly.

In situations where an opponent's IT staff member must be deposed [30(b)(6)], for better understanding of the party's IT infrastructure, CyberControls is frequently requested to attend the actual deposition or at the very least, assist the client in preparing interrogatories for the deponent.