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, 
http://www.forensicfocus.com/index.php?name=Content&pid=346.  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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