Australia: Evidence Dos and Donts

Last Updated: 11 February 2019
Article by Erick Gunawan

When dealing with data, whether it is for the purposes of IT governance, litigation dispute or internal investigation, always consider data as evidence.  Evidence that can ultimately end up in court and, as such, needs to be preserved and protected with a proper, forensically sound workflow.

The definition of data is pretty broad nowadays.  From your traditional hardcopy documents, all the way through to emails, files and even as far as your voicemail and chat messages; it can all be used and should be treated as evidence. With the speed in which data is created presently, the vast amount of it and all the varieties, it is important to understand the way in which preservation, collection and presentation can be done in a forensically sound manner without destroying the integrity of the data.

Different countries also treat data privacy issues with varying degrees of seriousness.  From Singapore’s Personal Data Protection Act 2012 until the recent enforcement of General Data Protection Regulation (GDPR) in Europe, companies and their legal departments will also have to focus not just on how to change the way they handle customer data, but on how to handle data pertaining to their own employees as well.  It is also important that any forensic data collection, preservation or examination is compliant with the applicable laws.

One thing to note is that data collection is different to data preservation.  Data preservation ensures potentially relevant data is not deleted.  This means any documents or emails that are subjected to preservation are kept until such time as they are no longer evidence.  This also means any systems, procedures or policies that can potentially destroy or delete these documents is disabled or is put on hold.

Data Collection

Data collection involves obtaining documents from source data repositories and copying them into the target locations for further analysis.  As stated above, it is important that whatever technique is used to collect this evidence it does not tamper with the integrity and originality of the data.  Several common categories of data that might need to be collected for the purpose of investigation or dispute include:

  1. Active – real time data such as emails and other traditional files that are stored on a local hard drive or network drive.
  2. Cloud – data created and stored on cloud servers, which includes social media accounts, DropBox and One Drive. These have grown exponentially in the past several years and the volume of cloud data will overtake the volume of active data in the not too distant future.
  3. Mobile – iPads, mobile phones and wearable devices can contain key evidence and collecting data from these devices requires advanced tools and highly specialised expertise.  Typical data that these tools can extract range from call logs and text messages, all the way to GPS locations, third party apps and health related data.
  4. Offline – data that is no longer in active use but is stored or archived, often by third party providers.  Obtaining and collecting this data can present some challenges due to its age and the technology and expertise required to extract it.
  5. Hidden – previously deleted or fragmented data that is not usually visible to regular system users.  These files need to be recovered using specialised tools and often can present evidence especially in investigation and criminal matters.

Considerations for Self-Collection

As a company’s IT teams become more advanced, they tend to perform their own collection in order to save costs.  It can be tempting to start collecting data, but from a forensic point of view, it could create more work as evidence could be missed which could make key evidence inadmissible in court.

Before collection starts, it is important to consider - why is the identification, preservation and collection of evidence in a litigation or regulatory investigation critical?

There is:

  • an obligation to provide complete and defensible Discovery in a litigation, product or in a regulatory investigation;
  • an obligation to preserve data in a current or reasonably anticipated litigation;
  • an obligation to file an affidavit around completeness of your discovery;
  • the need to find all critical documents to support and defend the case. It is necessary to know what adverse documents may have been created that the opposing party may use; and
  • the need to not give the opposing party reason to challenge the admissibility of your critical documents in court.

If challenged, the collection may need to be defended through testimonial in court by the person who carried out the collection.

Risks of Self-Collection

Consider that documents sourced for an internal investigation can become evidence and the same considerations should be applied to identifying and collecting those documents to avoid them being open to admissibility challenges by other parties.

Key Risks when carrying out a collection without expert help:

  • Omitting preservation or collection of data, such as deleted files or internet history, that can only be accessed with specialist forensic tools.
  • Inadvertently changing document metadata due to the ease with which electronic documents can be modified.
  • Not maintaining audit records of collection and chain of custody reports. The chain of custody must account for the seizure, storage, transfer and condition of the evidence logs to prove the authenticity of the collected documents in court.
  • Inability to efficiently collect alternate data sources like mobile phones.

Common Scenarios

Copying files to a USB:

  • Each time a file is copied to another location, it will potentially change the metadata. This means the file creation/modification/accessed times could be changed.
  • When trying to find relevant files, searching for files on a computer can update critical metadata or file and operating system artifacts.

Emails:

  • Similar to copying files to a USB, if emails are forwarded, this can change the metadata and the contents of the evidence.
  • When searching emails, it may result in critical emails being missed and the non-searchable text documents (eg. PDF attachments) will not be identified.
  • The company may have email archive solutions that require extra steps to ensure the complete email content is retrieved.
  • If emails are copied from Outlook onto the desktop, this will also alter the metadata.

Mobile Phones:

  • Unlike a laptop, it is not possible to just copy a file from the phone. A screenshot is creating new data on the device which in turn is changing the evidence and can easily be challenged in Court.
  • The majority of the phones on the market can easily be remotely wiped. A forensic image of the phone will ensure you are able to retain a snapshot of the device at that particular point in time.
  • Are dynamic and constantly changing. The relevant data or the artifacts around that data may not exist at a future time.

What Evidence is Being Sought?

Another key consideration to self-collection is what evidence is being sought. During an investigation, a critical document may be identified on a laptop that relates to the investigation, but what is surrounding that data needs to be considered.

On that laptop, there may be:

  • Deleted files that could be recovered that would not be visible to a user having a cursory glance over through File Explorer.
  • Multiple users that could have created the critical document, which would require analysis to identify the perpetrator.
  • Evidence of distribution of the critical document. It may have been shared through internal or external emails or uploaded to the Cloud.
  • Internet History that relates to the critical document. For example, a Google search relating to How to Beat a Non-Compete Clause or How to Steal Intellectual Property without your Boss finding out.
  • Inculpatory evidence that needs to be considered.
  • Additional offences that have occurred that have not been identified yet.

In summary, all data should be treated as potential evidence that could end up in court. When data needs to be collected, it should be done in such a way that the integrity of the data is not compromised. The risks of attempting to collect data without expert help are manifold and may make the data open to an admissibility challenge in court.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
 
Email Address
Company Name
Password
Confirm Password
Position
Industry
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions