We live in a digitised society, so it only makes sense that our courtrooms are also rapidly moving with this trend. Almost all litigation matters these days – from civil to criminal – involve some form of digital evidence. Computer hard drives and mobile devices are popular sources for collecting digital evidence.
Data collection is the first stage of the eDiscovery process. During eDiscovery, legal teams are tasked with analysing and reviewing electronic information. Digital forensics is the process of collecting electronic data in a defensible manner and may also include support to the legal team with the analysis of the collected data. Digital forensic experts may also act as an independent expert in court.
We will now look more in depth to create an understanding of how the eDiscovery process assists with a litigation matter.
What is Data Collection?
Data collection, performed by digital forensics experts, is a process by which active data is collected from a digital device. Active data refers to any information or data readily available through accessing file storage and program managers frequently used by both individuals and businesses. This can include – but is not limited to – calendars, emails, documents and text. After data is collected, it is sent to the legal counsel that requested it. The legal counsel will review and analyse the collected data to determine if it is useful in proving or supporting their case.
Sometimes, a forensic analysis of data is required. It is especially useful in cases where financial crime is involved. Some other examples of when analysis is necessary to obtain specific data might include:
- IP or proprietary information theft cases where evidence that an unauthorised individual accessed or copied files from a computer network via a desktop computer is required
- Recovering deleted files and emails that can provide evidence of an alleged crime or to support a family law dispute such as child custody cases
- Retrieving location or data activity from a mobile device
The legal team, with the support of digital forensic experts, can then analyse the data with the intent of finding evidence that can support a legal claim. The digital forensics experts may be asked to produce reports with their findings and may also be called upon to testify about their discoveries in court.
Maintaining data integrity is important during the collection of digital evidence. The data must remain protected or it could be ruled inadmissible in court. Hiring a digital forensics expert who can leverage tools designed to retrieve data safely can help.