Why the CSO/CISO Should Care About eDiscovery Part -6-

Posted on by Stephen Wu

ESI Admissibility Strategy 

The previous section identified "presentation" as a critical phase in the discovery process. That section discussed how enterprise ESI is evaluated to determine its admissibility as evidence. Is there a fundamental strategy that can be taken? The answer depends upon whether the enterprise is the plaintiff or the defendant in a lawsuit. Accordingly, there are two scenarios that need to be considered. The first scenario positions your organization as the Plaintiff and the second positions your organization as the Defendant. In order to better understand the core strategies to be adopted by either Plaintiff's or Defendant's counsel, it is useful to define the adversarial intent of each party in these two scenarios. 

The first scenario positions your enterprise as Plaintiff, with the objective to make the enterprise's case against the Defendant.What is Plaintiff strategy? What will be the strategy of the Defendant? 

As the Plaintiff, the enterprise must ensure its evidence is admitted in support of its objective i.e. that the evidence makes your case against the Defendant. You must also seek to have excluded or discredited the Defendant's evidence intended to defeat your case against them. On the other hand, the Defendant in opposing you will seek to have your organization's evidence excluded or discredited to weaken your case against them. Accordingly, you, as Plaintiff will need to ensure that the Defendant's evidence presented against you (in an attempt to refute your claims and support theirs, if any are asserted) is not admitted or is discredited. 

The second scenario positions your enterprise as the Defendant. The Defendant enterprise's objective is to defeat the Plaintiff's case against it. What will be the Enterprise's defense strategy? What will be the strategy of the Plaintiff? 

As the Defendant in this scenario, the enterprise must ensure your evidence is admitted in support of your objective - refute Plaintiff's claims against the Defendant enterprise and defeat Plaintiff's case. This strategy must also seek to have excluded or discredited the Plaintiff's evidence offered in making their case against the enterprise Defendant (that's you). On the other hand, the Plaintiff, in its opposition stance, will seek to have Defendant enterprise's evidence excluded or discredited and thereby weaken your enterprise's ability to refute their claims (<em>i.e.</em>, make their case against you). Accordingly, you will need to meet essentially the same two goals as in the first scenario: Ensure your (Defendant's) evidence intended to make your case against Plaintiff admitted, and have Defendant's evidence offered in support of their claim(s) excluded or discredited. 

One key observation emerges. In terms of evidence strategy as either the counsel for the Plaintiff or the Defendant, the objectives are identical. There are three key tactical requirements. The first and most fundamental requirement is to ensure your organization's evidence is admitted. The second related to the first is the ability to refute the claims that your systems (and any output generated by your systems) are not reliable or that your evidence is not authentic. Lastly, develop a strategy to have excluded or discredit (known as "impeaching") the evidence submitted against your organization. Again, it makes no difference whether your organization is the Plaintiff or the Defendant. Each party to a lawsuit, whether a plaintiff or defendant, must offer evidence that must be admitted, both must refute the challenges made against the evidence offered, and both should challenge the evidence offered by the opposing party. 

Armed with a better understanding of the basics for an evidence strategy, we now need to understand the process by which ESI offered as evidence is assessed for its admissibility. 

Next: The Federal Rules of Evidence and ESI

Stephen Wu

Shareholder, Silicon Valley Law Group

cloud security law

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