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Digital stamped data can help corroborate client’s evidence

By Jennifer Brown, AdvocateDaily.com Senior Editor

Faced with two different versions of what happened in a dispute, it can be helpful to prove the credibility of an individual by using digital evidence gleaned from mobile devices and cloud sources, says Tyler Hatch, founder and CEO of DFI Forensics Inc.

“When giving evidence, parties to a lawsuit sometimes tell opposite stories about the events they were involved in, and memories are susceptible to inaccuracies as time goes by,” says Hatch. “What we can do is look at some form of digital evidence to verify a conversation, that way we’re not guessing two years down the road and relying completely on someone’s interpretation and memory recall.”

Whether it is a criminal matter or a disagreement over a verbal business contract that has gone bad, evidence in the form of text messages or social media can be used to help verify what was said or agreed on and when they received the message.

“The parties may have sent text messages back and forth so we can verify conversations and corroborate stories using that digital evidence,” Hatch tells AdvocateDaily.com.

DFI Forensics uses specialized tools and software to collect digital evidence in a way that preserves the data that is to be used as proof of an exchange of information. Whether it is pulling data from a mobile device or a cloud source, care is taken to make sure date and time stamps are not altered in the collection of the information. Data is captured to reflect exactly when the content was created, ensuring the evidence will be admissible in court, he says.

A recent case Hatch worked on involved a $1-million contract in which the parties decided not to have a lawyer involved in drafting the documents. The papers were not dated or signed, but one of the individuals took a smartphone image of what was agreed on, creating a digital record of the time and place.

“The issue that came up was whether there was a limitation date that prevents a lawsuit from occurring with respect to that contract,” he says. “Within the digital photo that was taken was embedded metadata, so we know what device it was taken on and the GPS information contained in it.”

That simple digital photograph provided some corroboration about what one of the parties said because it was accurate enough to reflect that they were on the second floor of the building the person said they were in when the deal was struck.

“It’s like that image of Lady Justice — there are coins being put in the scales and all of a sudden the scales start to tip in favour of one person’s version of the truth,” says Hatch.

That kind of verification of one person’s story over another also comes into play when DFI Forensics deals with criminal law cases involving access to the right devices and information sources, he says.

“For example, a complainant in a criminal case alleges forcible confinement or sexual assault involving a former spouse, but then we uncover text messages, they are inconsistent with the allegations,” Hatch explains.

He emphasizes that DFI will always advise what can reasonably be expected to be uncovered in the course of a digital investigation.

“I take it very seriously when giving clients an appropriate range of how long an investigation will last. If it takes me a little longer, I don’t exceed the amount I have quoted," Hatch says. "In select scenarios, it’s almost impossible to put an accurate quote on it, but where I can, I do so that lawyers don’t have to go back to clients to ask for more money.”

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