Each year the cost of litigation increases, and the primary driver is discovery. The cause is no mystery: we produce data at a remarkable rate, and the data is growing not just in volume but in complexity. One of the fastest-growing categories is “invisible data” — data generated by computer systems to deal with other systems, rarely if ever touched by an end user. When a dispute turns on what those systems recorded, two parties can examine the same machines and hand the court incompatible accounts of what is in them.
Underneath many discovery fights is a simpler problem: information inequity. Neither side trusts the other's account of its own systems, and inside litigation the only lever for testing that account is a discovery motion. So positions harden around competing narratives about the data rather than around the data itself, and the parties spend the case litigating the discovery instead of the issues.
There is a better use for the forensic record. Produced by a qualified neutral, under an agreed protocol, it is not merely trial ammunition. It is a mediation asset — a body of verifiable fact that both sides have reason to accept, and that narrows what is left to fight about.
§ 01 · Facts against narratives
The technical elements of a dispute are different in kind from the substantive claims. They are not grounded in law, advocacy, and persuasion, but in the ones and zeroes of the relevant computer systems. That immutability is what makes the forensic record useful in mediation: a neutral third party can establish those facts and present them in an efficient process, without the parties engaging in lengthy and costly rounds of briefing and dueling expert submissions.
Digital evidence, properly understood, is any evidence found on a computer or digital device — including data that has been hidden, erased, or otherwise altered and requires forensic analysis to recover. It lives in the usual places and, increasingly, in unusual ones: cloud platforms, vehicle systems, wearable devices. The volume is enormous, and most of it is noise. A forensic neutral's first economic contribution is cutting through the surplus to the data that is most probative, and potentially dispositive, of the question actually in dispute.
§ 02 · Why a neutral, and not another expert
Consider two rival technology companies. Key employees leave Company A for Company B; soon after, Company B announces products whose functionality mimics Company A's. Whether confidential information was misappropriated will not be answered by the products' functionality. It will be answered by the code, and by whether Company A's documents exist on Company B's systems. Yet Company B has a valid objection to giving a direct competitor — including its counsel — access to its code and systems, and Company A has no desire to expose its own proprietary information in discovery.
A qualified forensic neutral with no ties to either party, given access to both parties' systems under an agreed protocol, resolves those concerns without forcing either side to trust the other. Federal Rule of Civil Procedure 53 gives courts express authority for such appointments, and parties can also stipulate to one. The neutral can draft the forensic protocol, determine the existence and authenticity of digital evidence, analyze deleted or corrupted data, validate court-ordered deletion, and audit compliance with a court order — and, unlike a party-retained expert's report, the neutral's findings do not arrive pre-discounted as advocacy.
§ 03 · What makes a report settlement-grade
Not every forensic report can carry that weight, and counsel should know the difference. A proper forensic report is not a legal document; it is a technical and scientific document. It does not contain arguments — it contains facts, the immutable truths recorded in the ones and zeroes of the systems examined. The discipline shows in the method: the examiner documents every source of data and maintains a detailed chain of custody; works only from verified, validated duplicates so the original data is never altered; and writes up both process and findings so that another examiner, given the same repositories, could follow the report step by step and reach the same results.
A proper forensic report is not a legal document. It contains no arguments — only the facts recorded in the ones and zeroes of the systems examined.
A good report also states its own limits: the tools used and their underlying assumptions, the methodology and search criteria, the scope of the investigation. No report is perfect, but a good one identifies its areas of potential concern and spells out their implications for counsel and the court. Padding is the tell in the other direction — a report beefed up with superfluous data usually signals there was little of use to find. In mediation, transparency of method is what lets an adversary accept the finding without conceding anything else.
§ 04 · Putting the record to work
Counsel who want the forensic record to do settlement work should: (1) engage the neutral early — it is faster and cheaper to establish the technical facts before positions harden than to remediate a dispute afterward; (2) scope the engagement to the technical questions, not the merits — the neutral clarifies what the systems show and what preservation, collection, and production will actually cost, while the parties generate the solutions; (3) arrive with the inputs that make the work efficient: data maps, business use cases for the data at issue, an explanation of why each item of discovery is requested, and IT resources on call when technical questions arise; (4) insist on the report qualities above — chain of custody, reproducibility, stated limitations; and (5) memorialize the result in a written protocol, search terms, or scope agreement, which gives the parties both a record to present to the court and a roadmap for continued compliance.
The facts of the dispute are already sitting in the parties' systems. The only question is whether counsel spend the case arguing about what those facts might be, or spend a fraction of that establishing what they are. Establish them — and litigate the issues, not the discovery.
Draws on “Mediating E-Discovery Disputes Can Save Time and Money,” Law360 (2016), “Understanding a Digital Forensics Report” (2016), and “Deciphering Digital Dilemmas” (2025), co-authored with Hon. Charles Margines (Ret.).