Make Your Case by Leveraging ESI Experts at Trial

Preparing for and responding to electronic discovery is a complex undertaking and thus very difficult for courts and jurors without technical backgrounds to fully comprehend. As disputes over ESI take an increasingly prevalent role in litigation, attorneys are turning to ESI experts to explain and justify their ediscovery conduct when it is attacked. Moreover, the judiciary has begun to suggest that having third-party ESI professionals serve as expert witnesses is a best practice.

Qualifying an ESI Expert ESI experts must be qualified to testify. Pursuant to Federal Rule of Evidence 702, titled Testimony by Experts, a witness qualified as an expert by knowledge, skill, experience, training or education may testify as to scientific, technical or other specialized knowledge. Rule 702 further provides that expert testimony must be useful to a trier of fact and be based upon sufficient facts or data as well as reliable principles and methods.

A notable case on this topic, Mintel v. Int'l Group, Ltd. v. Neerghen, 2009 WL 1033357 (N.D.Ill. Apr. 17, 2009), is instructive regarding judicial standards governing the qualification of ESI experts under Rule 702. In Mintel, the court rejected the defendant's argument that the plaintiff's expert testimony should be barred because it was based merely on experience and thus was not testable. In reaching its decision, the court noted that Rule 702 explicitly permits expert testimony based on experience and testability is not a requirement to establish reliability. Rather, the court focused on whether the expert's testimony would be helpful to the trier of fact and readily concluded that the expert's testimony regarding spoliation would be extremely helpful, especially considering the complexity of the electronic evidence issues involved in the case.

The conclusion to be drawn from Mintel is that when courts rule whether to qualify an ESI expert to testify, they will look at both the reliability of an expert's testimony and whether the testimony is relevant. Mintel makes clear that experience is a valid method of qualifying an ESI expert. Currently, there is not a uniform credentialing system that can be used by courts as a benchmark for determining whether an ESI expert is qualified; therefore, courts will continue to look toward an ESI expert's training and experience.

When to Examine an ESI Expert In light of Mintel's emphasis on the pragmatic value of ESI expert testimony in explaining complex issues to lay jurors, the question arises: what can ESI experts testify about that would be helpful to a trier of fact?

• Sanctions. Were preservation efforts sufficient? Was destruction of electronic evidence intentional? Were production efforts reasonable? Are sanctions warranted for these or any other reasons?

• Privilege Waiver. Did a party waive privilege or work product protection over inadvertently produced documents by failing to conduct reasonable steps such as competent keyword searches to prevent the disclosure?

• Authentication. Is there sufficient support that ESI is what it purports to be in order to be authenticated as evidence for trial? Is there a proper chain of custody? Is there other technical support such as metadata, history or hash values?

Choosing the Right Expert There are two types of experts that can potentially be called to trial – consulting and testifying experts. A consulting expert is one who has worked with the case at trial in some capacity, from document retention planning through production. Consulting experts may be called upon to testify regarding their ediscovery conduct and its defensibility. In contrast, a testifying expert is one who was not personally involved in the case. A testifying expert is often an ESI consultant from a noninvolved organization or someone with a doctorate in statistics. A testifying expert is meant to provide a more objective, unbiased analysis.

Regardless of whether a consulting or testifying expert is examined, choosing an expert with prior testifying experience is advisable. An expert who has previously testified is likely to be easily qualified and will also more likely present persuasive testimony. It is also crucial to make sure that any ESI expert you retain to assist in the ediscovery process rigorously documents his or her activities as this will greatly strengthen his or her credibility and persuasiveness if examined at trial.

Conclusion Trial attorneys cannot ignore the benefits that flow from providing an ESI expert to explain their ediscovery conduct at trial. Electronic evidence issues are increasingly becoming case-determinative or, at least, very expensive as courts deal out sanctions for ediscovery misconduct and negligence. Be prepared to make your case that your ediscovery conduct was reasonable and should not be sanctioned by leveraging ESI experts at trial.