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Forensic Examination

Forensic Examination of Digital Devices in Civil Litigation: The Legal, Ethical and Technical Traps

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A. Introduction

As children, many of us dreamed of growing up to be a spy. As portrayed in books and films, spies lead such fascinating lives. They go on missions that are always intriguing and sometimes sexy (think Sean Connery or Daniel Craig in James Bond), or exceptionally dangerous (think Matt Damon in Jason Bourne), or simply hilarious (think Melissa McCarthy in Spy or Mike Myers in Austin Powers). But spying is the last thing any lawyer or forensic investigator wants to be accused of doing—especially by a prosecutor claiming that a search of a digital device violated federal wiretap laws,1 federal laws protecting electronic information stored on computers,2 or state wiretapping, computer tampering, eavesdropping and privacy laws.3Unfortunately perils do lurk behind the gathering of evidence from digital devices, especially devices that do not belong to the client. And bad things still can happen to good lawyers and forensic investigators who extract information from computers, tablets, and smartphones that are lawfully owned, possessed and used by the client. If curiosity can kill a cat, it can certainly cause problems for lawyers and forensic investigators who are not attuned to the potential hazards.

Lawyers have an ethical obligation to be competent in the matters they handle, including understanding technology involved in litigation. Litigators must be knowledgeable about the potential evidentiary value of smartphones, tablets and other digital devices. This means knowing what information is carried on them, and potentially retrieved from them, as well as being versed in the legal and ethical limitations on extracting digital data from such devices through forensic examination. The limiting principles that lawyers (and forensic examiners) must appreciate are found in laws that prohibit wiretapping, computer abuse, and eavesdropping, and protect privacy rights, as well as in the ethical first principle that lawyers may not engage in, or enable clients to engage in, criminal or fraudulent activity.

Lawyers are responsible for determining the legally permissible boundaries for conducting forensic examinations of digital devices, and in so doing must carefully consider the quality and scope of the consent given, i.e., the authority under which the examination is to be performed. What may start out as a lawful search may quickly turn questionable, or even plainly unlawful, depending on the scope of the permission granted, what evidence is developed, and how the recovered information implicates the privacy rights of third parties. While the evidence from such devices can amount to a smoking gun, you don’t want it to backfire and find yourself sued, prosecuted or disbarred for actions that, in hindsight, were not lawful and could have been avoided with a modicum of foresight.