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FXR is a Forensic Computer Scientist, Electronic Evidence and Data Retrieval Specialist, and E-Discovery Expert with world-class expertise in computers and software, e-discovery, programming languages, operating systems, litigation support, computer forensics, and research studies.
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In a case concerning misappropriation of funds, the plaintiff discovered during the defendant's deposition that he had a laptop computer they had not been told about. The defendant was informed that they wanted to submit the laptop to forensic investigation. He was further ordered not to make any changes to the computer. The deposition was on a Monday afternoon.
Defendant said the laptop was in a nearby city and that he wouldn't be able to get it until Tuesday.
On Tuesday, the defendant said he had made a mistake and the laptop was in a different city, farther away. He then said he would produce the laptop on Wednesday in the city where the expert lived. On Friday, he finally produced the laptop in another state, in the city containing the home office of the plaintiff.
As we recommend in cases involving Electronically Stored Information, ESI, we created an image of the laptop drive and subjected it to forensic examination.
We searched for certain documents we expected to be present, but they were not there. In examining the drive, we found that its date was wrong by one day, saying the last time it had been booted up was the day after we created the image.
Extensive examination revealed that the defendant had reset his computer's clock to a date three months earlier; that after about 50 minutes he returned the computer's clock to the proper time. For some reason, perhaps he forgot something, he again moved his clock back again by three months. However, when he reset the date—presumably to the proper date—he made a one day error and moved it forward by an extra day.
Additional investigation could have revealed what the defendant was doing during the time when he had set the computer clock back, but the information on spoliating the evidence was sufficient. The case settled.
Electronically Stored Information, ESI and e-discovery
In light of the 2006 amendments to the Federal Rules of Civil Procedure, discovery of Electronically Stored Information ("ESI") (also called e-discovery) has become one of the most critical, and certainly one of the most costly challenges faced by litigants and their counsel. Trial attorneys understand that they must now take a far more proactive approach to helping their clients identify and secure ESI, and must do so at the earliest stages of a case.
Quite apart from litigation and the challenges faced by trial attorneys, businesses - particularly those faced with SEC and other regulatory compliance challenges - may have to make substantive changes in their record keeping, policy making, and document management.
At KKAI, we provide a full range of e-discovery and computer forensic services. We can assess a client's current system(s) for managing its ESI, recommend changes needed to help bring a client in line with the regulatory compliance requirements, and assist businesses in preparing e-discovery plans. We can help design Record Retention Plans, develop systems for monitoring retention plan compliance, and construct and explain Data Retention Architectures. We can help draw up Litigation Hold Plans that let businesses plan for fast, efficient, and safer responses to litigation. Planning ahead in this fashion can help businesses avoid serious sanctions in the event of litigation and what might otherwise turn out to be a practical inability (despite all good faith efforts) to respond to the e-discovery demands of an opponent or order of a court issued under the Federal Rules. When embroiled in responding to e-discovery demands, we can conduct forensic investigations involving technical issues such as metadata, email, text messaging, deleted but recoverable data, event and web logs and more.
In litigation, if there is any expectation that responsive discovery is stored in electronic form - a virtual certainty in today's world - litigants and their counsel need to consult an expert in e-discovery and computer forensics at the outset of a case or claim, not only to assure themselves that they can respond consistently with the requirements of the law, but also to enable document production to proceed in a manageable and (to the greatest extent possible) cost effective manner.
Read other articles by this KKAI Associate:
Good News/Bad News: The Tugboat's Black Box
Purloined Intellectual Property
The Case of the Vanishing Emails
The Family Business: You Missed One
| Forensic Computer Scientist, Electronic Evidence and Data Retrieval Specialist, and E-Discovery Expert, computers and software, e-discovery, programming languages, operating systems, litigation support, computer forensics, and research studies. | |
| Resume of FJB | mathematician, electrical engineering and computer science expert, computer and network forensic investigation and analysis specialist, patent infringement expert witness testimony, engineering consulting services |
| Resume of ISY | computer science expert, software engineering consultant, research and development, computer networking specialist, computer security research consultant, expert consulting services |
| Resume of KFZ | computer science specialist, software copyright infringement consultant, software patent and trademark infringement consultant, computer forensics specialist, e-discovery consultant, project management, system test, and information development consultant, forensic investigation and analysis, expert consulting services |
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Rapid Response Engineering® Solutions
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