“ there is absolutely no reason any attorney, or business, should take chances with their future by not handling digital evidence and the eDiscovery process the right way “[1].
In a context where almost everything is becoming digital, computer examinations carried out in a judicial setting are expanding at speed, according to several authors[2]. The growing virtualization of personal and professional exchanges naturally encourages the growth of this practice. Although computer examinations remain little known to some, they can prove decisive in the outcome of a dispute or an investigation.
The primary aim of digital forensics[3] is to find and preserve the electronic evidence relevant to an investigation or to legal proceedings. The role of the digital forensics expert is therefore to accompany the litigator, or any investigator, in the search for and identification of items of digital evidence, and to secure their legal value. A contrario, the expert may also be retained to carry out a counter-examination of the evidence presented by the opposing party, in order to assess its reliability, integrity and authenticity, for example. Whatever the mandate given to the expert, they normally produce an expert report supporting their conclusions, and may act as an expert witness before the court where required.
As an article entitled “When Litigation Involves Digital Evidence, Forensic Readiness Can Play a Crucial Role”[4] points out, the truth is that legal proceedings today almost all involve items of digital evidence such as emails, text messages, files, metadata, browsing histories and geolocation data. Without our even realizing it, the Internet and our smartphones leave traces everywhere, and recovering data deleted from a system can be child’s play for an expert.
The ubiquity of the digital does, however, create two main problems within organizations. One concerns the technical misunderstanding of information flows and assets; the other, the management and preservation of items of evidence in the course of legal proceedings. Without a clear and effective process for handling electronic evidence, companies take substantial risks. Among them, they run the risk that the best evidence they hold on a file will be lost or ruled inadmissible in court if it has not been properly handled and preserved. The integrity, reliability and authenticity of the evidence are principles that can be cast into doubt fairly easily once it has been altered.
Unfortunately, the current system contains no clear normative principles for preserving electronic evidence, apart from the few provisions of the Act to establish a legal framework for information technology[5] that apply within our province’s areas of jurisdiction. To summarize a few of them: the integrity of technology-based documents must be preserved if they are to retain their probative value. Furthermore, the integrity of a copy of a technology-based document will be assured if the process used offers sufficiently serious guarantees to establish the fact that the copy contains the same information as the source document[6]. Note that some of the provisions on the integrity of documents have been taken up in the Civil Code of Québec[7].
It is also worth recalling that the Sedona Canada Principles on the administration of electronic evidence state that parties to a dispute should immediately take reasonable steps to preserve potentially relevant electronically stored information (ESI), as soon as litigation is reasonably foreseeable[8]. Caution is therefore in order when it comes to going out to find our evidence. Because everything, after all, is a question of evidence.
[1] PRWEB, “When Litigation Involves Digital Evidence, Forensic Readiness Can Play a Crucial Role”, New York, 21 June 2014, online: https://www.prweb.com/releases/2014-ediscovery/Forensic-Readiness/prweb11963915.htm
[2] See in particular Will YACOWICZ, « Digital Forensics: A Billion-Dollar Market in the Making », online: https://www.inc.com
[3] We choose to use the expression “digital forensics” here to cover, more broadly, the notions of forensic computing, computer forensics or simply computer investigation.
[4] PRWEB, “When Litigation Involves Digital Evidence, Forensic Readiness Can Play a Crucial Role”, New York, 21 June 2014, online: https://www.prweb.com/releases/2014-ediscovery/Forensic-Readiness/prweb11963915.htm
[7] See articles 2838 and following.
[8] The Sedona Canada Principles: Addressing Electronic Discovery, The Sedona Conference Working Group Series, Working Group 7, January 2008, online: https://lexum.com/e-discovery/documents/LesPrincipesdeSedonaCanada200801.pdf