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Use a Neutral Forensic Examiner to Find Digital Evidence Within the Litigation Budget

In many personal injury, employment, and other cases, one of the best sources of evidence may be the opposing party’s smartphone. For the plaintiff, the phone of a defendant employee can be just as valuable. Lawyers, think about how you use your phone: for everything. Calls. Texting. Taking pictures. Internet usage. It accompanies you everywhere you go. All the while, it accumulates and generates data (such as steps taken, Wifi networks and Bluetooth devices encountered, location data, and more). It’s safe to say that any number of key players in your litigation use their phones as much as you do, if not more. Even when someone is not “using” the phone, phones accompany us everywhere we go, and they accumulate and generate data the entire time they are with us. Smartphone data can give tremendous insight into someone’s day-to-day activities. It is sometimes called “pattern of life” evidence. Nearly everyone’s phone has it. Odds are a plaintiff, a defendant, and employee witnesses all carry and use smartphones, and they all have data that could shed light on a case. Overall, you probably have no idea what information could be there. Digital forensic techniques may be needed to obtain helpful data because the user cannot obtain it through the phone’s functionality to respond to a discovery request (even if the user were to look for it, which many people do not consider examining their phones for responsive information in discovery).

But asking for access to that data will undoubtedly start a fight. For the same reason you want a forensic examination of the phone, the other side, or at the very least the phone’s owner, has legitimate concerns about privacy. The phone is guaranteed to store data having nothing to do with the lawsuit—data that the owner had no idea anyone would ever see; data that the owner may not even know exists, partly because the phone may collect that data without notifying the device owner. Facing the expense of a discovery dispute over the uncertainty of whether it will yield helpful evidence leads many lawyers not to seek phone data.

One solution to the dilemma of whether to seek phone data is to jointly hire a forensic examiner in the case. That way, you can devote more of your litigation spend to other issues.

The process usually goes something like this:

· The neutral examiner collects data from device(s) requested by both parties.

· The parties agree on searches to be conducted or data to be collected. Obviously, the different parties may have different data in mind.

· The neutral forensic examiner obtains the data and provides it to the responding party to review. The responding party reviews the data and separates it into two buckets: produce and withhold. The responding party logs the data to be withheld much like a privilege log so that the receiving party can make informed decisions about whether to push back on the objections.

· The neutral forensic examiner only provides the requesting party with data authorized by the responding party. The parties can use the log of the withheld data for determining whether to pursue the discovery, for meet and confer efforts, or for motion practice.

· If needed, the data being provided to the responding party can go back to the neutral examiner so that the neutral can determine whether everything is accounted for in one bucket or the other, and to ensure that nothing slipped through the cracks (i.e., is neither produced nor logged).

· If the parties cannot agree on some action, the neutral forensic examiner takes no action.

This arrangement provides tremendous benefit and eliminates many disputes:

· The parties share the cost so the risk to the litigation budget is reduced. Yes, jointly engaging a forensic examiner imposes added steps in the forensic examiner’s work that would not be needed if the examiner were only retained by one side, but overall, engaging a neutral should result in savings to any given party over engaging a separate expert.

· The requesting party obtains the data needed. At the same time, the responding party (which may be the phone’s owner) is able to maintain privacy concerns. Data having nothing to do with the lawsuit is not shared with the opposing party.

· Requiring the parties to agree on tasks to be performed provides a built in mechanism for objections. Consider whether to allow any ex parte communications (whether allowed or prohibited, this can raise issues to address either way).

· The joint engagement obligates the forensic examiner to both sides.

· The proverbial “battle of the experts” can be avoided.

No, this arrangement does not eliminate all concerns. The parties will likely have to work through what searches are agreeable, what data is relevant, and which objections are proper. One side may want data while the other does not, or one side may want much more data, causing the party less interested in electronic data to resent sharing the bill. But that may be cheaper than the dispute over whether the device should be produced, imaged, and analyzed in the first place, and the arrangement reduces the risk that the court orders the phone, with all its contents, to be produced to the requesting party.

While engaging a neutral forensic examiner may come up most frequently regarding a smartphone, it can apply in so many other areas, including:

· Company computer and storage devices

· Surveillance camera footage

· Security systems or access control systems

· Third-party devices

If you are going to explore this arrangement, jointly call the proposed neutral examiner to discuss it. When one party reaches out to the forensic examiner first, the other may be suspicious of that examiner from then on.

Is this going to work in every case? Of course not. Can it save your client money in the appropriate case? Absolutely.

One reason not to proceed in this manner is if revealing the data you are interested in can reveal what your theory or strategy may be before you are ready to. Furthermore, your case or your client may need a forensic examiner who is not obligated to two masters. Frankly, that is (and needs to be) the situation in most cases. But in the right case, a neutral forensic examiner could obtain evidence that otherwise may not be cost-effective when you take into account the expense of getting access to it, including associated disputes.

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