Collaboration between lawyers, forensic team can reduce time, cost
By Kirsten McMahon, Managing Editor
Innovation in the consumer space has created a breadth and diversity of electronic evidence never seen before, but there are a few ways legal practitioners can work more closely with digital investigators to move matters along in a timely and cost-effective manner, says Jason Green, principal of Hexigent Consulting.
“Some lawyers are used to working with digital evidence and with firms like ours,” he tells AdvocateDaily.com. “But others have less exposure to digital evidence in a large complex way. What that generally leads to is the application of more traditional and manual methods on their end, which takes a considerable amount of time and ultimately costs their client.”
The ubiquity of mobile devices, social media, cloud storage, voice assistants, etc. means data can be stored anywhere. Digital forensics is now much more involved than searching hard drives and servers, Green notes.
“People are using devices to do more than just day-to-day work — so much of what we do is online, so digital evidence for any type of case is commonplace,” Green says.
“The diversity of the types of evidence in conjunction with where it may be and how it should be obtained is very challenging. The growing complexity and how best to handle and interpret that evidence is another driver for lawyers to work more closely with digital investigators,” he adds.
The widespread adoption and acceptance of technology have increased the overall amount of data that each person generates, uses and stores, Green says.
“The average hard drive capacity, for example, has grown tenfold over the last decade and it doesn’t show any signs of stopping,” he says.
As a result, Green says it’s common for lawyers to want very large sets of data examined. Once it's preserved and ready for analyzing, they will typically provide the forensic investigator with search criteria.
“That could include specific words and phrases, with some temporal restrictions such as date ranges,” he says. “But even with that criteria, there can be hundreds of thousands of search matches.”
Rather than taking those matches and conducting a manual review, Green says applying contextual searching for large amounts of data makes it much faster and more cost-effective.
“We can do things in a matter of hours or days where it may take lawyers weeks, if not months, to achieve,” he says. “They can still provide a list of terms, but it’s much more efficient to add context, explaining why these things are important and what their relevance is.
"The interconnectedness of data means investigators like us might be able to identify items that are either closely related and relevant or provide other more effective ways to cull that initial data down to something more meaningful,” Green says.
Collaboration with examiners is also a big piece of the puzzle, he says.
“A firm like ours is here to support the legal team. We do this work every day on all types of matters, so we understand the challenges with large and small cases on both the civil and criminal side. We can suggest ways to be more time- and cost-effective for their clients,” Green says.
Include digital investigators or examiners in the process, and most are more than happy to spend time with the legal team and clients to help them understand some of the idiosyncrasies and limitations when dealing with electronic evidence, he says.
“One of the challenges I think we have in our industry is that we have been portrayed in fiction as people who can find the smoking gun in minutes or hours,” Green says. “Obviously, that isn’t the reality of how it works, but certain things can be done incredibly quickly. It’s a matter of understanding the data, knowing how best to use the tools and having the right platforms in place.”
When lawyers and digital investigators work more collaboratively, there’s also a better understanding of the cost model.
“Our firm generally works the same way lawyers do — our fee structure is to charge for time and materials per hour,” Green says. “Some things take tens of hours, some take hundreds, and those costs are pushed to the client. By working together, we can help defend or prosecute the case in the most effective manner.”