Knowing "What" is important. It is a 'necessary but not sufficient' condition to take a page from our mathematician friends. It is finding out the "Why" that is reason for our investigations. And yet so many investigations stop short and simply present the "What".
Let me explain.
Remember in the 'olden days' on the back of many of the photos that were shoved into a photo album there was some handwriting? Usually the writing described when the picture was taken, where and what it was a picture of…
Collecting and interpreting data from digital photographs may seem straightforward - but just like Grandpa's squiggly cursive handwriting, sometimes you need an expert to tell you precisely what the notes on the back mean.
Persuasion. The ability to persuade is one of the 'core competencies' of a litigator. You spend your life honing the skill. You turn an ability into an income and a lifestyle.
You are a story-teller. Stories persuade. All the affidavits, discoveries, cross-examinations, transcripts, exhibits, motions, factums, testimony, and your stirring closings are there to tell the story.
The best stories draw us in.
…we successfully broke into the encrypted storage container and recovered photo evidence of the spouse entering the home (contravening the retraining order) and retrieving the logs via USB stick.
The client loved us. The spying spouse, not so much.
Knowing "What" is important. It is a 'necessary but not sufficient condition' to take a page from our mathematician friends. We are brought in to investigate to find the "Why". Yet so many investigative reports we read stop short and simply present the "What".
Let me explain.
We who battle to advance law and technology are accustomed to setbacks and defeats at the hands of the old guard. Although the world has gone digital, litigation and litigation lawyers remain by and large fixed in a pre-digital world. Change, as a recent SLAW post observed, comes slowly.
It’s not really a word. It's an acronym. But you still need to know it.
The EDRM. The Electronic Discovery Reference Model. If you are in business, you need to know about it. If you are a lawyer you need to know about it. Which means: most people need to know about the EDRM.
Why? Let’s begin with what.
Here at ellwood Evidence we spend a lot of time telling lawyers and business people that You just can’t put screen shots of social media posts in as evidence, any more than you can a handwritten copy of a letter. You have to collect social media posts forensically, and authenticate them.
Now, best practice demands that employers have a protocol for gathering digital evidence at the moment an employee leaves. Otherwise, the ex post facto gathering of evidence is closing the barn door after the horse has left.
But, setting aside this concern, the main point of Ms. Sweeney’s piece is that ex-employees will likely have data - i.e. digital evidence - in more places than the obvious ones.
This is a highly simplified, non-exhaustive listing of some key differences between the Canadian and American legal systems. I’ve left out many details. I simply mean to impart a basic understanding of the Canadian system to someone who knows the American one.
Don’t let the gawky handle fool you. CGSB-72.34-2005 is hugely important. It’s the document from the Canadian Government’s Canadian General Standards Board (i.e. the CGSB) titled *Electronic Records as Documentary Evidence*, and the standards it sets out apply to everyone. Public sector, private sector. For profit, not for profit. People, corporations.
All discovery is e-’discovery’ nowadays. Most lawsuits are exclusively digital. No lawsuit is strictly paper-based. Except those where the Luddite lawyer has all the digital evidence printed out on dead trees.
A typical mobile device can hold 16 to 64 gigabytes (GBs) of information, some even more. Thousands of pictures, documents or messages that could be relevant to a case. Each device stores data in different ways. This article discusses the value of mobile devices from a forensic perspective.
We technophiles in the law business spend a lot time grousing about the Luddite techno-troglodytism of the profession. Lawyers don’t get e-discovery. Judges don’t get metadata. The Court system doesn’t allow for paperless proceedings. Yada blabla yada.
The steps the ABA has taken underscore that the writing is on the wall. Technology in the legal profession is here to stay, and must form a basic part of lawyers’ competence.