Wednesday, April 07, 2010

Neutral examiners

by Craig Ball

Craig Ball
About the Author

Craig Ball is a Texas lawyer who limits his practice to service as a court-appointed special master and consultant in computer forensics and electronic discovery.

I recently posted an open letter to judges on a blog that caters to an e-discovery audience. I asked judges to stop ordering parties to turn over their systems to the opposing side's computer forensic examiners and argued that most civil forensics work should be reserved to neutral examiners.

Now, while you rush to warm the tar and pluck the feathers, please hear me out.

Yes, most of my work as a computer forensic examiner is done as a neutral, but I do a lot as a partisan on either side of civil cases. Even so, use of a neutral isn't something that uniquely benefits me. It's something any competent, ethical examiner can and should do. What I'm advocating won't hurt you; in fact, it'll likely add to your job satisfaction.

Here's what I posted:

"Your Honors:

I just read another opinion where the Court decided to let one side's computer expert examine an opposing party's computers. The Court seemed more concerned with who would pay for the exam than what its consequences might be.

I'm a lawyer and computer forensic examiner, and I make part of my living doing just the sort of examinations the court ordered. I've done a whole bunch of them. So, while part of me wants to encourage courts to order more forensic exams — and I can surely attest to their efficacy in resurrecting data thought gone and exposing case-making evidence — the angel at my ear requires me to softly whisper, "WHAT THE HECK WERE YOU THINKING, JUDGE?!?..."



Sean McLinden said...

Having served both as a court appointed master and as a "partisan" expert I'd have to say that while I would agree that the use of a "neutral" party could save considerable expense, I don't think that it is appriopriate or desirable in all circumstances for the following reasons.

First, ours is an adversarial not an inquisitorial system of justice. You could make the same point that there should be a single attorney or, better still, let the Court question the witnesses and eliminate advocates altogether, at least by this logic.

Second, experts are used not only to determine matters of fact but also expert opinions. It becomes the job of the jury to determine how to weigh those opinions in coming to a verdict. Many times, expert opinions are in opposition to each other; was their wiping or not? A single expert can have only one opinion as to the meaning of the facts. That opinion will be based upon skill and experience and may be wrong. Even neutral parties are captive to the biases of their experience. With a single expert, the Court is limited to that bias.

Third, it assumes that there exist experts who know everything, which is simply not the case. I have been in cases where I learned something from other experts and I have been in cases where it has been clear to me that I knew more.

As an example, in 2007 it was a poorly documented feature of Microsoft Outlook that, when you read a message with an attachment, if you closed the message before closing the attachment, a persistent temporary copy of the attachment would be kept in the user's profile. If you closed the attachment, first, that would not happen.

On the basis of NOT knowing this, an opposing expert testified that the ABSENCE of temporary copies of attachments which contained alleged trade secret information was positive indication that these attachments had been wiped.

If this expert had been the sole "neutral" expert, my client might have been charged with spoliation of evidence.

The reason for the adversarial system that we have is that, though inefficient, the process helps us to refine the law and its application to real world situations.

Similarly, the presence of adversarial experts helps us to separate good forensic practice from "junk science". Sometimes the "expert" will be wrong. Sometimes the expert will miss things that other experts might have detected. Sometimes the expert's conclusions are subject to rebuttal.

For these reasons, and others, I cannot fully endorse the "neutral" party argument, in spite of its seeming attractions.

Marian said...

I fully agree with Sean. More, I want to add to "...the presence of adversarial experts helps us to separate good forensic practice from "junk science"..."
Not all experts have up-to-date experience, not all of them use verified methodes and tools, and, from time to time, not all of them are fully indepedent... (this is only my experience). In case of one "neutral examiner" you will not have a chance to show to your "opponent" his amateurism :) This is also one of the arguments for adversarial environment.
Apropos, in case when two forensic reports declare totally different results on the same/similar examination, ther is a chance for court to ask third expert/istitution, to provide an auditorial examination, isn't it? It is not cheap, but it is fair.