In our case study, gas station owner, Morris, has alleged that Green Fuel, a small gasoline distributor, overcharged him. Both parties had inadequate and unsophisticated documentation, making determining losses very difficult.
However, review of the parties’ sparse documents revealed Green’s electronically produced invoices for fuel sales to Morris, which meant that Green more than likely did have ESI available despite its claims to the contrary. The new challenge became not only convincing Green that the information existed but also helping Green and its attorneys understand how it could be retrieved.
This is when it’s best to observe and understand the daily routines of the parties. Information-seeking interviews with personnel that regularly use the computer system, such as the accounting clerk or administrator are a good place to start. Interview questions should seek understanding of the daily routine, including the functions regularly performed, and the tools used to accomplish those functions.
Observation of the performance of key functions will also aid in gaining an understanding of the computer system and the software programs used.
In the case of Green, the interview required a few hours with its accounting clerk to observe her daily routine, including the data processing of fuel deliveries, creation of computer-generated invoices and subsequent data processing of payment receipts.
At the completion of the interview, a plan was developed to extract the data from Green’s archaic system, which required a multi-step process including the use of more advanced technology.
A detailed discussion of the process is beyond the scope of this blog, but let’s just say that Green’s archaic system was able to provide electronic records of the gallons of fuel delivered to Morris, the date, and the amount charged – for all eight years.
With the ESI extracted from Green’s database, Morris’ economic loss claims were analyzed using two methods:
- As speciﬁed under the contract (“the contract method”) – This revealed not only was Morris not economically damaged, but that Morris had actually underpaid Green in excess of $1 million.
- As business was actually transacted (“actual performance method”) — Morris underpaid Green in excess of $700,000.
Morris’ claims were dealt a lethal blow by the analysis of relevant ESI. Initially, Morris’ claims seemed somewhat feasible due to the lack of data by Morris and Morris’ “bet” that Green would never be able to organize and analyze the data to disprove his claims.
Morris had no way to prove his claims with reasonable certainty, but by using electronic data analysis, Green was able to disprove Morris’ claims (without question) and actually determine that Morris owed Green. Morris dismissed his claims against Green only two weeks after the ﬁndings were revealed to his attorneys.
Adapted from: “Unlocking the Potential of Electronically Stored Information in Damages Cases.” Dunn on Damages – The Economic Damages Report for Litigators and Experts 4 (2011): 20-21. For more information, visit http://www.valuationproducts.com/dunn.html