Digital forensics and electronic discovery provide excellent ways to uncover important information during a criminal or civil investigation. However, it is becoming increasingly clear that the court system and legal professionals are still evolving to be able to accommodate this new type of evidence. Unfortunately, many problems are erupting as legal professionals continue to choose the wrong vendors to help with digital forensics.
In 2012, a North Carolina business court heard the case of Blythe vs. Bell, and digital evidence really complicated matters for the defendant. The defendants relied upon an under qualified vendor to filter millions of documents in order to remove any privileged attorney-client information. The subpar digital forensics vendor did a very simplistic keyword search in order to determine which of the roughly 308 million documents contained privileged information. The documents were never reviewed any further. As a result, thousands of documents that did contain privileged information were handed to the plaintiffs.
The defendant’s legal team tried to have the privileged information returned, the plaintiffs refused and the judge sided with the plaintiffs. The judge ruled in favor of the plaintiffs because of the sheer volume of information that was released, and the level of negligence on the part of the defendant’s team. They had made no effort to review the documents or supervise the digital professional that was responsible for screening the evidence.
It is crucial to understand that not every Information Technology professional is familiar with digital forensics. Even network security administrators may not understand how to properly conduct electronic discovery in regards to building an admissible criminal or court case. Digital forensics is a new, developing, and complex field, and the investigation process must be handled very delicately.
When under qualified technology vendors accept the daunting responsibility of conducting an electronic investigation, there are many problems that can occur. First, information that should be kept private can be accidentally released; such was the problem in the Blythe vs. Bell case. The person responsible for completing the digital forensics in that case admitted in court that he had never performed this type of work before. Due to his inexperience, he did not know how to pay careful attention to detail when working with monumental volumes of documents, some of which containing highly sensitive material.
Digital forensics requires high levels of due diligence and very specific skill sets that not all computer professionals have. E-Discovery professionals that are experienced and qualified will be familiar with best practices that will lead to the successful collection and protection of documents. They understand complex strategies that involve carefully identifying any and all files that are pertinent to the case, as well as tracking IP addresses and being able to connect the address clearly to a specific subscriber.
Yes, many different computer technicians would be able to extract files, and possibly even restore lost or damaged documents. However, only highly experienced and knowledgeable digital forensics specialists will know how to go about these tasks in a way that is going to protect the rights of those involved, and how to follow procedures that will help legal professionals build a strong and credible case.
When searching for electronic discovery professionals, it is important to do your own research. It is essential to ensure that the forensics vendor has completed numerous projects in the past, and has built a strong reputation in the field. The forensic specialists with the most hands-on experience in the field will typically deliver the most valuable and trustworthy services.