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The Art and Science Behind Discovering The Smoking Gun

Attorney R. Christopher Dix shared his knowledge and insight regarding e-discovery for a recent article for the Association of Certified E-Discovery Specialists.

The article outlines how lawyers say that the fundamental skills necessary to find incriminating evidence remains the same- as long as you are savvy enough to know what you?re looking for and where to look. In fact, finding a smoking gun email is less a technical question than it is a practical question.

The smoking gun email is important to both plaintiff and defense attorneys. It helps resolve disputes early if parties can demonstrate they have a strong potential case, and it can help set the dollar amount for any potential settlement. However, a smoking gun is no longer always an email. “A smoking gun can be a text message, social media, or it can be a person,” says Dix. “Just the fact that one person talked to another is often an important fact. Forget what they say, just the fact they are talking can be a smoking gun.”

As seen, not only is finding the smoking gun vital to many cases, but protecting against accidentally producing a privileged smoking gun is vital too. The challenges in managing the hunt for smoking gun evidence is a technical challenge, but there are also technical solutions.

In particular, Dix says that visual analytic technology is helping lawyers find smoking guns by illustrating relationships and communications patterns. Many of the leading e-discovery review companies now have analytic tools that automatically group, organize, and classify digital evidence based on subject matter, custodians, and the relationships between the authors of the information, which can help establish vital clues about what might be hidden in a collection of electronic evidence.

However, Dix says that lawyers can benefit from low-tech search strategies as well. For example, creating a simple word list from a collection of emails and documents can help identify how custodians are talking about their work, which words are important, and what unexpected terms might be useful search topics. “If you look at emails from the Enron case, they were using a lot of strange names for these offshore companies the company was using,” says Dix. “You can learn a lot just by looking at words that the custodians use over and over. Too many times, lawyers assume they know what to search for. Instead, let the evidence show you the way.”

But Dix believes lawyers and forensic examiners need to begin looking beyond email and text based content for smoking guns. “Finding the evidence you need can’t take all of your time and resources,” says Dix. “It’s about being smart about where evidence might live”


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