Top 5 Tips For Lawyers To Follow When Engaging A Digital Forensics Expert
The Digital Forensics Files PodcastShow Notes
Hiring an expert isn't always easy. In my experience, many lawyers don't have a digital forensics team that they routinely work with. While the need is increasing as interactions with technology results in more sources of evidence to explore, it's not a regular need for many lawyers' practices.
So, off to Google lawyers go and the search begins. Most of time, it works out okay, but when it doesn't the consequences can be significant.
Here are five tips for lawyers to follow when engaging a digital forensics expert in a lawsuit:
What's in a name? Perhaps everything - if it's clearly not what you're looking for. If you're contacting the "Geek Squad" or "Nerds R Us" to be your digital forensics specialist, you are probably not going to find what you're looking for. Legitimate experts don't use business names like this.
Look for a "forensics" expert! Professionals in this industry either explicitly use the term forensics or identify with it. The very word "forensics" is derived from language that means "for use in court". Following strict protocols to ensure admissibility of evidence and verifiable findings is the name of the game so don't take chances with someone who calls themselves something like an "IT specialist" without ensuring they are what you need.
Get a CV Ensuring that your expert has specialized training, knowledge and experience is the very thing that permits an expert to be exempted from the evidentiary rule against providing an opinion as opposed to a statement of fact. This may seem like common sense, but I have seen so-called "experts" engaged without being asked for a CV or any explanation of their qualifications.
The right tool matters. Ensure your digital forensics expert has the right tools for the job and ask them to explain what they will be using and why they are necessary. I would even recommend asking if there are other tools available and why they use what they use. You want to ensure the highest quality tool is used for best results. There are hardware tools and specialized forensic software that relates to the proper acquisition of electronic evidence and subsequent analysis.
Know the limitations of a digital forensics investigation before you hire your expert. Nothing is certain in digital forensics and you never truly know what you are going to find until you acquire and analyze the evidence. However, everyone should know that from the start. If you are engaging an expert to determine a fact, it's important to know the variables that affect the outcome and to what degree there is a chance that the investigation will be unfruitful. A true professional digital forensics expert will explain the benefits of an investigation and advise of known possible outcomes - including negative ones - to allow you to make an informed decision.
See also, Tyler's latest feature AdvocateDaily.com post on this subject here.
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