The Dangers of Do-It-Yourself eDiscovery: A Warning to Lawyers and Business Leaders.

http://ow.ly/8C2iq

A blog post by Gene Petty on the eDiscovery Paradigm Shift blog.

This article provides warning to attorneys who gather their client's electronically stored information, and represent that client at trial.  The article points out that attorneys involved directly in the collection and processing of ESI might be making themselves a potential witness in the case.

The article states, "Lawyers who gather ESI directly face several dilemmas and dangers. One of the largest concerns is the lawyer becoming a witness in the case. American Bar Association Model Rule of Professional Conduct 3.7 prohibits the lawyer from acting as the lawyer in the case and being a necessary witness."  The blog post goes on to provide information about the details of the referenced Rule 3.7

The blog post further discusses the authentication of the ESI.  The author states, "Any person who gathers ESI must be able to authenticate and lay a foundation for that ESI. “Authentication” simply means that the person called to admit the ESI must prove that the ESI is what he or she claims it is. That person must be able to lay a foundation for the ESI.
To authenticate the evidence, the person called to testify may need to establish the following, depending upon what is sought to be introduced and the issues raised:

How the ESI was gathered.
Where the ESI was stored.
Who had access to it.
Establish the chain-of-custody
Whether other ESI was also located.
Whether a thorough search was conducted.
Whether the ESI sought to be introduced was altered from its original state.
Other essential details.