When should you consider using digital forensics?

Jul 12, 2018

Industry News

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Digital Forensics

If any form of digital information is even remotely involved in a case or legal situation, a digital forensic examination will be required. Digital information has invaded virtually every aspect of our day-to-day existence, having become a basic component of our lives, from computers, to smartphones, to social networking, digital information plays a crucial role in almost every case.

Computer forensics differs from data recovery, which is, recovery of data after an event affecting the physical data, such as a hard drive crash. Computer forensics goes much further. Computer forensics is a complete computer examination with intricate analysis of digital information being the ultimate goal.

For a successful forensics examination, you must have all the information relevant to a matter, not only to construct effective legal strategies, but also to focus your expectations and efficiently budget your services. There is nothing more difficult to address than a case which has become complicated by new facts, where you once expected the matter to proceed smoothly and without significant cost. Knowing all the facts early in a matter, allows you to better prepare for those cases that will require significant legal expertise to manage.

In response to pending litigation, analysing your relevant ESI (Electronically Stored Information) is an excellent way to discharge your duties to preserve evidence and avoid spoliation, while also acquiring all relevant information essential to your legal theories and strategies. Similarly, as part of critical business decisions, forensically analysing relevant computers and devices can provide essential information. For example, analysing the computers of corporate officers or employees as part of the termination process can alert you to possible litigation issues such as violation of non-compete agreements, improper copying of intellectual property, etc.

To prepare for litigation, an attorney ought to determine whether a Request for Production of Documents will obtain all relevant evidence. A simple question to ask is whether you want to discover part of the relevant information (i.e. visible by your opponent’s operating system) or all of it (deleted, hidden, orphaned data, etc). It is not unrealistic to anticipate that information contained on a computer system which is helpful to a matter would be saved, while that which is harmful would be deleted, hidden, or rendered invisible. For example, in sexual harassment cases, it is not unusual to discover deleted emails and other data invisible to the operating system that significantly impacts the case. Computer forensic analysis extracts all the emails, memos, and other data that can be viewed with the operating system, as well as all invisible data. In many cases, the invisible data completely changes the nature of a claim or defense, often leading to early settlement and avoiding surprises during litigation.

In any situation in which one or more computers may have been used in an inappropriate manner, it is essential to call a forensic expert. Only a computer forensic analyst will be able to preserve, extract, and analyze the vital data that records the “tracks” left behind by inappropriate use. Taking the wrong steps in these circumstances can irrevocably destroy the vestiges of wrongful use that may result in litigation or criminal prosecution.

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