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I recently went to see Joel Tobias, Managing Director of digital forensics and electronic disclosure company CYFOR, at its head office in Bury near Manchester. The resulting video interview can be seen here.
CYFOR began as a one-man forensics company and has now grown to employ 30 people covering forensic collections for a range of purposes – criminal, investigative and regulatory – and the electronic disclosure work which may begin with a forensic collection and move into a processing, analysis and review exercise.
The interview covers a range of topics, starting with the question whether an apparently straightforward electronic disclosure exercise ought to begin with a forensic (that is, a byte-for-byte, exactly matching) collection. There will be some cases where this is obviously right – where employee fraud is alleged, for example, or where the case involves some form of computer misuse. In other cases, an employee self-collection of a small number of e-mails and Word documents is all that is required. In between lies a wide range of cases where, however proportionate one wishes to be, one cannot be sure how wide-ranging the investigations will go.
It makes sense, Joel Tobias suggests, to ask what the likely costs are, both the identifiable costs of a forensic collection and the potential implications of having to go back for further data which may have been deleted or altered by the time you realise that you need it.
The message to potential clients is that one ought to seek estimates before assuming that a forensic collection will be disproportionately expensive. Joel emphasises that CYFOR will always do its best, subject to obvious contingencies, to fix fees at the outset. For much government work, for example, this is a pre-requisite for bidding for the work.
I take Joel Tobias through a couple of sample situations – a defecting employee, for example – and ask him to explain what advice he gives to clients and what factors suggest one approach rather than another. This influences the choice of processing tool and review platform as well as the manner of collection, and we hear about the two platforms which CYFOR recommends, Symantec’s eDiscovery Platform and Nuix.
The recent amendments to the Civil Procedure Rules impose new duties on lawyers to identify what electronic sources of information are available, what might be relevant for the purposes of disclosure, and what the potential costs are of rival approaches to managing documents and data. The message which comes through from the interview is that an early call to a software and services provider like CYFOR is essential at this scoping stage of litigation in order to be ready for the Disclosure Report which must be filed no more than 14 days before the case management conference.
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