e-discovery

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Probably no one, as a child, said, “I want to be an electronic discovery expert when I grow up.” That’s because the field of e-discovery and computer forensics surfaced when they were already grown-ups.

It’s a field that has emerged in just the past few years, says Matt Stippich, vice-president and general counsel for Digital Intelligence in New Berlin.

Stippich, a computer forensics and e-discovery expert, as well as a practicing lawyer, says he has been a regular attendee at the national legal technology shows for the past several years. Roughly six years ago, the vast majority of programming and vendors dealt with topics such as time and billing or case management software. These days, however, he says that e-discovery dominates, both the CLEs and in the exhibition halls.

Nonetheless, it’s not a field that’s understood by the general public. Rick Steighorst, a forensic specialist and e-data analyst with Midwest Paralegal in Oak Creek, says that when he’s meeting new people and telling them what he does, the typical response is, “Oh, just like on ‘CSI.’” He usually smiles and leaves it at that.

What it Takes

All who spoke to Wisconsin Law Journal on the topic of what it takes to succeed in computer forensics hold bachelor’s degrees at a minimum, and have many years’ experience in forensic and/or law-related fields.

Although his degrees are in business and accounting, Lee Neubecker, president of Forensicon in Chicago, says with a chuckle that his college minor in theater arts has served him well as a computer forensics and e-discovery expert. Not so much for the acting abilities. But, in Neubecker’s opinion, that minor has helped him with communication — and highly-developed communication skills are critical to do the job well.

First and foremost, even the most brilliant technician won’t be able to let those abilities shine if he or she doesn’t have work. Client development is essential and that takes communication. That’s on top of the fact that, experts write forensic reports — putting nouns and verbs together in a cogent form — and they testify — speaking publicly to judges and juries.

Glenn Hertel, an electronic data manager with Midwest Paralegal, explains that, in a way, the job involves “translation” skills. “I consider IT or computer terminology to be a foreign language, that’s constantly evolving. And I would say the most important thing I’ve learned, when dealing with lawyers and paralegals, is to put IT talk into a manner that they can understand. They don’t need or care to know about ‘bytes’ and some of the more technical language. They just want their answers as they relate to their work.”

The job additionally requires a great deal on concentration, patience and diligence. Steighorst says, “You get into complete detail. You’re separating out information from this mass amount that gets thrown at you, and that’s just tedium all around. But, when it does have that ‘CSI’ element, it’s really fun.”

He cautions, “We just don’t wrap it up in 60 minutes, like they do.”

In fact, according to Neubecker, some cases take years before they are concluded. An e-discovery expert who wants to tout a success story on a Web site will likely have to wait a long time before doing so, and will have to be careful about using only information in the public domain.

Driven by Deadlines

Law is deadline-driven, therefore, so is computer forensics, says Stippich, which means the job occasionally entails late nights or weekend work, and travel. A case from 2006 took either Stippich, or one of his colleagues, to 32 different countries. “We’d be in Vietnam on Tuesday, and find out we needed to be in South Africa by Thursday,” he recalls.

Because lawyers don’t hire them as early as they’d like, sometimes they’re scrambling to meet deadlines, says Steighorst. With batch-processing software, they can divide up a project and hasten its pace of completion to a certain extent, but there’s no substitute for analysis done by a human being, and that just takes time. Last year, he had to postpone a family vacation for his work obligations — not something his boss enjoyed asking him to do. But ultimately, the customer was satisfied and the vacation did happen.

On that note, the field requires responsiveness and a customer-service orientation. Attorneys like to have answers immediately. “When you get really busy, it’s easy to get lost,” says Neubecker. “Clients really want to talk to a person when they call. So we ripped out our auto attendant. It’s rare today that you actually get to speak to a real person.”

And, not surprisingly, it’s a field that requires staying on the cutting edge. E-discovery law is fluctuating rapidly, as is technology, says Stippich. In one area alone, spoliation and e-discovery, a line of cases has mushroomed, and the fact is, if a law firm or computer forensics company alters or destroys evidence, they face tremendous exposure.

Then there’s the pure technology aspect. There’s much that can be learned from list serves and newsletters, in addition to networking with peers, say Hertel and Steighorst. However, because the field is so new, there really aren’t dedicated associations just yet for them. Also, there’s a healthy level of competition and some aren’t very anxious to share information.

That’s one reason why they couldn’t offer a range of salaries available for computer forensic experts — although they assured Wisconsin Law Journal that they’re well compensated.

The salaries can range widely, hypothesizes Stippich, the difference being whether one is a technician versus a consultant.

When seeking projects, they encounter competitors who bid at lower prices. But, as in everything, you get what you pay for, he says. “If you pay for commodity service, that’s what you’ll get, and if you’re willing to pay for professional services, that’s what you’ll get. And that plays into what kind of salaries are available.

“Certainly there have been a lot of large players working in this area, because the see the money spent in litigation and they want a piece of that. … There’s been kind of a ‘fierce grab’ for people who can do this kind of communication,” Stippich says.

Looking to the Future

Neubecker says that in recent years, tons of new, competing businesses have sprung up. Certainly, there’s a great deal of work out there. Like lawyers, some experts “practice generally.” His business, however, has developed a specialty in misappropriation of trade secrets. Some cases can benefit from the generalist, while for others, the “boutique expert” is appropriate, given the stakes involved.

He also notes that some of the newcomers into the field “don’t necessarily understand forensics, and they’ve moved into the space from the copy business. They might be able to make an image of a hard drive, and they may be able to do some of the more ‘commoditized’ functions. But in term
s of really digging deep, and figuring what they did, how they covered their tracks and really telling their story, a lot of these companies are ill-equipped to do that.

“It really comes down to attorneys knowing, ‘Who, specifically, is doing my work, and what is their experience?’ If they ask those questions, they might discover that freelancers or subcontractors are doing the work, and there’s a lot of loose control. Clients in pursuit of the lowest costs run the risk of having their cases collapse on them once they go into court.”

Stippich could not agree more, adding, “I’ve seen attorneys try to do this work themselves. I would not advise it, because I think the risk of destruction of evidence is far too great. For most attorneys, it’s not within their area of expertise.”