Newsbits 2009

  • December 2009 (Topic 32): Tracking Experts: Daubert Database

    The Daubert v. Merrell Dow Pharmaceuticals (92-102), 509 U.S. 579 (1993) decision on admissibility of forensic evidence places a burden on the attorneys to qualify their experts (The Daubert hearing). Do you know what your expert has testified to in the past and the outcome? There is a new subscription service which can help: http://www.dauberttracker.com. Please look at this resource.

  • November 2009 (Topic 31): Who will do computer searches?

    In September we discussed how U.S. v Comprehensive Drug Testing limits searches of computer media to ONLY the case at hand. Who then will be able to do the search of the opposing party's media? Will the court have to appoint a Special Master to evaluate the evidence for each side? This may add another layer of cost to the case which could be burdensome to the small plaintiff or defendant.

  • October 2009 (Topic 30): California enacts eDiscovery Rules

    On June 29, 2009, California enacted eDiscovery rules which go further than the FRCP. The Act requires the parties to produce ESI in a "reasonably useable form." It allows your eDiscovery Investigators, ACTForensic.com, to go on site to copy, sample, or test data in the other parties' possession or control. You do not have to just take what is offered. California can levy fines as in FRCP 45. An excellent summary can be found at estorian.dcig.com

  • September 2009 (Topic 29): US CA9 Limits Computer Searches-is "in plain sight" about to change for computer forensics?

    Last month we discussed how Melendez-Diaz v. Massachusetts (07-591), changed confronting THE forensic analyst who prepared reports, not just the report. On the heels of this decision comes a new case released 8-26-09: U.S. v Comprehensive Drug Testing. In most basic terms, only files related to the case under a Search Warrant may be opened and used as evidence. Any evidence found during the computer forensics of other crimes is off limits. This might be carried into the civil arena and limit investigations of opposing party's media to only a named suspect of the tort, but what happens if the investigators find another tort not related to the case at hand?

  • August 2009 (Topic 28): Parties have the 6th Amendment Right to "confront witnesses."

    This may be common in civil cases, but the Supreme Court, in Melendez-Diaz v. Massachusetts (07-591), ruled criminal defendants have the right to confront THE forensic analyst who prepared a report, not just have the report accepted into evidence. Civil or Criminal, now more than ever, it will be important to know THE examiner was not only competent, but can testify in a professional manner to their findings.

    More in the New York Times: www.nytimes.com/2009/06/26/us/26lab.html

  • July 2009 (Topic 27): eDiscovery: FRCP 26 Native Format is the Best Evidence

    In a recent case, defendant opposed native production for eDiscovery. However, the Federal Court found electronic documents, even if there was no metadata, as the defendant claimed, were far easier to organize and search than the mountains of paper documents defendant's had previously produced. The courts are making eDiscovery clearer with each new case.

  • May 2009 (Topic 25): Forensics: Can Science replace Art in the use of Common Sense?

    Defense Attorneys: Accepting the prosecution's Evidence taken from your client may be detrimental to your client's freedom. Computer Forensics is not the only evidence you should question. If a Forensic Examiner uses "scientifically" accepted methods in a rote manner does not mean they used common sense to interpret the results. Solomon Moore published an excellent article in The New York Times on February 4, 2009. It is a long article. http://www.nytimes.com/2009/02/05/us/05forensics.html

  • April 2009 (Topic 24): eDiscovery: Should you just accept the prosecutor's e-Evidence?

    Defense Attorneys: Accepting the prosecution's e-Evidence taken from your client may be detrimental to your client's freedom. Computer Forensics is not a scientific, rote activity-just because the examiner used EnCase (or similar program) and out popped an answer. How the Computer Forensic Investigator interprets this information is an Art. Similar results can mean many things, as with any evidence. For example, 50 child pornographic images gets your client much more jail time than 5. What if the examiner counted every hit, link, and .jpg as an image, when in fact they may be related to each other?

    WARNING: IF your State Case involves Child Pornography, of any type, be aware of Federal Laws concerning you or your experts handling such evidence. You need to obtain State Protective Orders.

  • March 2009 (Topic 23): eDiscovery: Did the respondent destroy computer evidence--recourse?

    Hypothetical: In a recent case we investigated, the tech savvy respondent was a caregiver for the person who had passed away about 90 days earlier. The respondent claimed he was the sole beneficiary of the plaintiff's Estate and produced a Will dated shortly before the plaintiff passed away. A Contestant to the Will objected: The respondent still had access to the plaintiff's property and computer. He was observed using the computer. No other person was known to have used the computer during this time. Our computer forensic investigation confirmed data was deleted two separate times. The respondent claimed data was not relevant. We recovered files which indicated probative value to the deleted data. The court held the respondent destroyed evidence and ruled any evidence he presented was not admissible. Without our investigation the respondent may have gotten the plaintiff's Estate.

  • February 2009 (Topic 22): eDiscovery: Sup Ct changing Exclusionary Rule

    Defense Attorneys: The US Supreme Court has diluted the Exclusionary Rule (5-4) in Herring v. United States, Case citation No. 07-513 2008. IF your case involves computer evidence this may be even more critical. Evidence discovered by "innocent mistake" was "fruits of the poison tree." This evidence might now be admissible under this Herring.

    WARNING: IF your State Case involves Child Pornography, of any type, be aware of Federal Laws concerning you or your experts handling such evidence. You need to obtain State Protective Orders.

  • January 2009 (Topic 21): eDiscovery: email and its header data

    Email is becoming the most widely used method of communication in the business world. It is quick, efficient, and a good way to keep a permanent record of what transpired. When asking for email during eDiscovery, insist the providing party include each email's header. A header has the all of the source and routing information associated with the particular email. A claim by one party that they sent an email without providing the header information as proof is like a claim of timely posted regular mail without a signed proof of mailing. Insist on the header on email threads also - this is proof of who knew what and when.

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