Digital Forensics within Civil Litigation
3rd April 2017
Over the years Digital forensics has emerged as a prominent force within the legal environment. With the prevalence of new and emerging technologies as well as their dominance in our everyday lives, it is no surprise that new forensic methods have developed to keep up with the times.
Civil litigation can employ multiple Digital Forensics techniques, such as Mobile phone forensics, computer forensics, cell site analysis and audio visual forensics. These can all emerge as powerful tools within a criminal or civil case as they can provide exceptional evidence to ascertain the facts for the prosecution and defence.
These techniques are predominantly wielded by independent digital forensic experts, who are instructed by criminal lawyers, however, many of the police constabulary’s have specialist in-house investigative units.
Within criminal matters, these digital forensic investigations tend to cover a range of offences ranging from indecent imagery, drugs and murder to name but a few.
When a criminal prosecution case involves computer forensics, the intention is to locate enough data to find the defendant guilty in court, where the standard for information presented tends to be fairly high.
The focus of these digital forensic techniques tends to lean more towards criminal matters, however, there are many opportunities to utilise these applications within civil matters or civil litigation.
Civil litigation is an integral part of the justice system and digital evidence has consistently proved its value, although procedures within civil cases differ somewhat from those in criminal cases.
Data collection, imaging and the presentation of the evidence can be considerably different, with the consequences of the case ultimately having very different outlooks.
Firstly, in the traditional manner, the civil aspect covers an array of violations outside of the criminal spectre, namely ‘white collar crimes’. These typically cover a variety of crimes including fraud, bribery, tax evasion, intellectual property theft, computer misuse and commercial disputes. They all typically involve crime committed through deceit and are motivated by financial gain.
The losing parties within such disputes often must give payment, property or services to the prevailing party as imprisonment is not at issue within civil cases.
Within civil litigation, there also tends to be a lot of negotiation over what digital evidence, computers and data can be inspected, as well as where and when. It is common for one party to have access to a limited area of data from the other party’s computer.
During this time, a defendant may take the opportunity to attempt to hide or destroy data, which is where a computer forensic expert can come into play, employing specialist techniques to recover the ‘lost’ data. This deleted data and in itself the act of deleting the data can be used as further evidence within an expert witness testimony. However, a missed item of digital evidence can be the difference between a substantial jury verdict and the dismissal of a case.
Any litigation matter that involves digital evidence, whether located in a computer, laptop, tablet, smart phone, portable drive, or any other device is open territory for eDiscovery.
In a civil case, the initial process of eDiscovery (electronic discovery) may be to find enough relevant data to show a party whether they are likely to prevail, if the case goes to court.
Another aspect of utilising digital forensic experts within a civil litigation is in the case of a family matter or divorce. If an individual has illegally obtained access the their partners email or social media account then a computer forensics expert can examine the digital evidence, some of which may have been removed or deleted.
Employment and Initiating Pro-active Forensics
Organisations are increasingly aware of the fact that if an employee discrepancy occurs at a late stage then considerable damage can be inflicted and costs can spiral out of control. If an employee has access to sensitive information then pro-active forensics prepares the employer for unforeseen employee indiscretion and can be used as evidence in court. Pro-active forensics is an up and coming technique whereby organisation instruct a digital forensics specialist to forensically ‘image’ employee laptops and devices when they leave the business. A forensic ‘image’ is effectively an exact copy of the data stored on a device and can be relied upon as evidence if a matter were to be taken to court.
Data analytics involves the examination of ‘big data’ with the purpose of ascertaining conclusions about that information within a relevant matter.
Within civil litigation, data analytics is used by companies and organisations to process vast amounts of data to establish hidden patterns, correlations and interactions. A digital forensic or eDiscovery expert will use a sophisticated platform such as Nuix or Relativity to process such information. Utilising these review platforms are critical in finding the relevant information quickly and efficiently and can tip the balance for a successful outcome within litigation.
In conclusion, it is apparent that digital forensic techniques usually associated with criminal matters should not be overlooked when concerning civil matters. The various and specialist digital forensic techniques are a powerful medium to uncover important data, which can be key to a successful outcome within civil litigation.