Role of Third Party Neutrals in E-Discovery and Forensic Investigations - Law

Any law firm or client involved in an e-discovery production or computer forensics investigation understands the complexity, time, and costs involved in these projects. In some cases, a high degree of technical aptitude is needed to navigate the issues and communicate with the opposing party and judge. In situations such as these, some parties have found success using a neutral third party expert to provide independent, non-biased processing or evaluation of the data involved in the case. In some highly contentious cases, the judge will order appointment of a third party neutral on his or her own accord.

In both situations, these experts typically work as officers of the court, ensuring data is properly preserved, technological best practices are employed, confidentiality and privacy are protected, and issues between the parties are resolved. An e-discovery expert acting as a third party neutral would collect, filter, process and host review and production databases for both parties, using separate technical resources and project management teams. A third party neutral engaged on a computer forensic case would image the computer media, assess the data involved, and only present relevant information to the parties and court, thus protecting any sensitive material.

The use of third party neutrals has become more common in e-discovery and forensic investigations because of the benefits for the overall litigation. Advantages of employing a third party neutral may include:

Enhanced objectivity and balanced fairness across parties to protect privacy interests, attorney-client privilege, and irrelevant and non-discoverable information.

Fewer discovery disputes and a level playing field regarding the technology methods used to collect, filter, or investigate the data.

Greater predictability of completion timeframes given one individual or service provider is the main conduit for work.

Decreased expense given the possibility for cost sharing between the parties.

The advantages associated with a third party neutral, however, come with some drawbacks. First, unless the court appoints the neutral expert, the parties must agree on who should be hired. Once a neutral expert is engaged, in very adversarial litigations, it can be difficult to convince both parties their confidences and communications with the expert will be fully protected. Many times, it is necessary to draft an agreement that delineates how confidences will be protected and communications will flow during litigation. Lastly, in computer forensic investigations, it may be necessary for a party to bring in a separate expert to provide expert opinion testimony, as the neutral expert could only provide objective testimony.

In a recent case, Sony v. Arellanes, Case No. 4:05-CV-328 (E.D. Tex. Oct. 27, 2006), the judge ruled the defendant's hard drive could only be examined by a neutral third party computer forensics expert, not the Plaintiffs' expert. The plaintiffs alleged that the defendant, using her personal computer, downloaded and distributed copyrighted sound recordings. The plaintiffs sought permission for their computer forensics expert to make a mirror image of the defendant's hard drive and to analyze it for evidence of illegal downloading and distribution. The defendant, citing invasion of privacy concerns, opposed the inspection of her computer hard drive by anyone other than a neutral third party expert. To balance the legitimate interests of both sides, the court found the defendant's suggestion had merit, with the cost of the neutral computer forensics expert born by the plaintiffs. The court provided the plaintiffs should have the right to suggest hard drive search methodologi es to the neutral expert, and the expert should make every effort to use those methodologies. The neutral computer forensics expert was tasked with producing a report of his or her findings and the methodologies used.

With the new Federal Rules of Civil Procedure in place, courts will be calling for parties to work together and avoid drawn out electronic data disputes. Savvy legal teams will consider finding common ground with their opponents and engaging a neutral third party expert to assist in e-discovery productions and forensic investigations. Further, like in the Sony case, if privacy concerns are involved in the case, parties may want to consider requesting the appointment of a third party neutral. In both situations, an even-handed, technical intermediary may make great strides in bringing closure to the case.