Get Smart: Part 2

September 06, 2016

"Get Smart, Forensically Speaking...for the Litigator” is an article series written specifically for litigators. The series helps litigators understand key concepts, strategies, and best practices without getting overly technical. Below is Part 2 of the article series. If you missed Part 1, click here.

Consider a hypothetical investigation or dispute similar to cases you have previously worked on. It could be a business interruption insurance claim, a purchase price dispute, a whistleblower investigation alleging fraud, or a regulatory compliance matter. You represent a client, who has engaged you to help investigate the matter or settle the dispute. Initial legal actions have already been taken to address the event that occurred, or business transaction that did not turn out as planned.

Your tasks, among other things, include interviewing participants. This will hopefully provide the back-drop for estimating the potential economic harm needed to file a formal complaint or respond to an action. However, at the heart of the matter will be financial and operational data that will need to be thoroughly sifted through, examined and evaluated to defend or prove your case.

You have already completed initial pleadings with the court and had preliminary discussions with opposing counsel. Your team has completed a high-level assessment and discussed potential early settlement scenarios with your client, none of which are viable. There is no current motion to dismiss. The gamut of discovery tasks - interrogatories, depositions and potential plans for expert witnesses - are moving ahead. It is "game on!" Your client's IT shop has been contacted and asked to provide you with 5+ years of financial and operational information pertaining to the matter. You expect to receive similar information from the opposing party's 3rd party outsourced vendor. Let's assume there are no chain-of-custody related concerns or issues. You receive some data files ... so now what?

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