Thursday, September 29, 2011

Is your client an attorney? Be aware of possible constraints on your investigation. (Part 1 of a multi-part series)

by Sean L. Harrington

Significant legal and ethical challenges confront digital forensics investigators, for which some may not be well prepared. Just as many lawyers may be confounded by technology in dealing with digital forensics matters, many digital forensics experts lack formal legal training, and are uninformed about their special obligations in the employ of a lawyer. These obligations include zealously guarding the attorney-client privilege, applying the work product doctrine, developing reports, exhibits, and testimony (that are both admissible and understandable to a lay jury or judge), and conducting their work in a way that does not compromise the integrity of the case or the rights, privileges, or immunities of the retaining party.
In certain situations, such as where digital forensics examiners serve as special masters (see Fed.R.Civ.P. 53) or third-party neutrals (see Model Rules of Prof’l Conduct R. 2.4 cmt. 1), they are regarded as officers of the court.

The use of a third-party neutral has significant advantages. See, e.g., Craig Ball, Neutral Examiners, Forensic Focus,  First, as an officer of the court, the expert is subject to the court’s inherent powers, thereby providing an extra measure of accountability for misconduct (e.g., confidentiality breaches).  Second, a third-party neutral is ostensibly impartial, which impartiality presumptively aids in the fact-finding process and administration of justice. Third, the third-party neutral is aptly situated to resolve discovery disputes, including issues of confidentiality, relevance, and privilege, and, if necessary, obtain court intervention or in camera review to resolve such disputes.

But if the examiner is not appointed by the court, but rather is retained by a party to an adversarial proceeding, he or she is nevertheless obliged to ferret out the truth...

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