Computer forensics have now become something of a staple of government investigations of corporate wrongdoing. As our work and lives have moved further and further into the digital space, so too has the relevant data we produce, creating a new set of digital markers worthy of examining.
Next week’s Legalweek West conference will bring together perspectives from all along the legal spectrum to address the shifting role that digital forensics play in the legal community. One panel, called “Forensics 2.0,” will examine the growing prevalence of digital forensics in corporate compliance and government investigations, and what role forensics can be expected to play in civil litigation moving forward.
U.S. Magistrate Judge Elizabeth Laporte of the Northern District of California, Bank of the West vice president of privacy and data security counsel Peter Day, Dragon Discovery chief operating officer and vice president of information governance Kimberly Quan and Federal Deposit Insurance Corp. (FDIC) senior forensics expert Jason Fry will each share insight driven from their work around the topic. Patrick Oot, a partner at Shook, Hardy & Bacon, will moderate the panel.
Digital forensics are not yet a mainstay in civil litigation, Oot explained. However, they can increasingly track how and what information individuals within an organization can access.
“When a user logs into a machine, computer forensics help uncover how that machine stores footprints and traces information, which might be important to show user access to the information,” he said.
Oot noted that while forensics experts are very familiar with hard drive extractions, the proliferation of new technology has forced experts to expand into new areas of examination. “Clicks, likes, follows and chats are the new source of key information,” he said, adding that compliance monitoring is now looking well beyond basic file structures to get meaningful user information.
“We leave so many computer footprints where we go. As more and more information moves to enterprise systems and the cloud, digital investigations go beyond to the hard drive of the old days,” Oot said.
While digital forensics can be a critical piece of a litigation strategy, it can also be incredibly expensive, often prohibitively so. Oot suggested that attorneys seriously examine whether computer forensics work is really worth the price before investing too heavily in the process.
“Forensics tend to be the most expensive and intrusive form of discovery,” adding that many of the tools digital forensics experts can use, however effective, exceed the permissible scope of discovery under the Federal Rules of Civil Procedure.
Given the steep costs associated with it, digital forensics should be undertaken carefully. “It should be reserved for only those cases where the forensic evidence actually matters,” Oot suggested.
Organizations have looked to bolster prevention strategies in hopes that they can head off matters of concern before being faced with a heavy price tag. Early data assessment and compliance technology, both fairly commonplace within highly regulated industries because of expanded regulation, is now something attorneys across industries are looking to as a means to get ahead of any potential problems.
“New tools that capture information before it leaves the control of an organization assist in preventing investigations before they happen,” Oot suggested. “These [electronically stored information] sources are actually helpful for both prevention and the later investigation if it’s needed.”
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