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Consulting vs. Testifying Expert: A Pivotal Early Decision Point "We need a testifying expert." We often hear this from counsel as we engage in matters involving complicated and voluminous digital evidence. Perhaps it is appropriately reflexive to consider the need for a testifying expert early in complex litigation, but Federal Rule of Civil Procedure 26(b) provides for two very different types of experts to assist counsel with trial preparation—an expert identified as one whose opinions will be presented at trial, versus an expert employed only for trial preparation. When examined, the strategic decision between engaging a consulting expert or a testifying expert at the outset of a case becomes clear. Particularly in the realms of ESI and computer forensics, areas nearly as specialized as medicine, attempts to identify the necessary substantive area of expertise before obtaining the digital evidence—an Apple expert, an Android expert, an expert on Exchange Server logs, someone to explain the peculiar logging in an Evernote account—can be futile. You will need a testifying forensic or computer expert (or experts) as you prepare for trial, and good ones at that; but, in the early stages of your case, the volume and complexity of the digital evidence may demand a consulting expert, as matters of strategy, ethics, and value to the client.

Strategy. If you engage a testifying expert from the start, most of the expert's file—the evidence

reviewed; emails exchanged; conclusions reached, whether favorable or not—will be subject to discovery under Rule 26, through depositions or other forms of required disclosures. This approach often exposes your client to undue risks, particularly when the scope and nature of the ESI and forensics are unknown (as experience reveals it almost always is, even to IT professionals within your client's organization). A consulting expert, armed with the protections of the attorney-client privilege, work product, and the discovery limitations in Rule 26, will help you develop a plan to gather the evidence; preserve it; analyze it; and, crucially, vet evidentiary theories in a confidential manner. And, a consultancy committed to a “Forensics First” approach will amplify and magnify those early efforts, getting you to the case-defining evidence much faster. When that work is done, the consulting expert will work with you to identify the particular testifying expertise and determine the specific evidence (with the appropriate chains of custody) to build an expert report.

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Ethics. State ethics opinions, like the one issued in Formal Opinion No. 2015-193 by the State Bar

of California, are setting the baseline for a lawyer's competence in handling ESI. This reflects the growth of similar federal guidelines, such as the ESI Guidelines adopted by the U.S. District Court for the Northern District of California. Such opinions and guidelines trigger duties to: conduct early eDiscovery evaluations; assess a lawyer's capacity to understand a client's data systems and storage; identify custodians and ESI repositories; advise a client on data collection and preservation; develop a discovery plan for the court; and negotiate and advise as to the scope of forensic or ESI protocols. If you don't know what data your client has (at an individual device and account level, or at the more challenging enterprise level of servers and cloud accounts), how to ask for it, how to acquire it, and how to analyze it, then you are increasingly required as a matter of ethical practice obligations to consult with an expert at the outset to help you work through these complex issues.

Value. You should think of your consulting expert as a speed and force multiplier. An expert

consultancy will help you scope the ESI and forensic aspects of the case and streamline the work of building the pipeline from the field (your client's data infrastructure) to the refinement point (a review platform) to prepare your data for analysis. Furthermore, the expert will help you make informed decisions based on actual data analysis, whether by forensic or other technology that is adept at making sense of large volumes of data. Unlike days past when an attorney was forced to abandon a matter or associate with a larger firm to undertake a high-volume data case, the right consultancy using applied technology can turn a once-dreaded process into a competitive advantage for your client, and at a fraction of the time and cost of engaging huge and inefficient law or accounting firms.

The Flatwater Advantage. Flatwater Forensics is a vetted member of the industry-defining

ClariLegal preferred vendor management platform. Flatwater delivers class-leading, clientcentric services that embody the ClariLegal ethos and sense of value. A boutique consultancy, Flatwater specializes in enterprise-level digital investigations, information security, and litigation involving complex digital evidence. Founded upon the decades of criminal and civil trial experience of our principals, we combine trial lawyers and paralegals who understand the legal and factual issues of your case with technologically-savvy analysts skilled at finding digital evidence that may otherwise go unexploited. Operating under a privileged relationship, we work in rapid consultation with you to develop, investigate, and vet evidentiary and substantive theories supported by the digital evidence. Early engagement of the Flatwater team not only provides you with necessary expertise and a competitive advantage, but it serves the practical ends of understanding the available ESI, supporting more precise litigation budgets, and driving favorable early resolutions. Top to bottom, we provide the digital know-how you need, all in one team—your own digital Mayo clinic. To learn more about Flatwater Forensics and the ClariLegal preferred vendor management platform, visit flatwaterforensics.com or clarilegal.com.

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Profile for Flatwater Forensics, LLC

Consulting vs. Testifying Expert: A Pivotal Early Decision Point  

"We need a testifying expert." We often hear this from counsel as we engage in matters involving complicated and voluminous digital evidence...

Consulting vs. Testifying Expert: A Pivotal Early Decision Point  

"We need a testifying expert." We often hear this from counsel as we engage in matters involving complicated and voluminous digital evidence...

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