What You Don’t Know Can Hurt You

By Dave Iverson

Thanks to television shows such as CBS’s CSI franchise, interest in forensic science is at an all time high. This has resulted in increased enrolment in criminology courses, and an overall dissemination of forensic knowledge to the general public. Yet despite this, the widespread use of computer forensics and electronic discovery procedures by the legal community still lags behind its more glamorous forensic cousins of DNA and pathology.

Current estimates place the average amount of electronic information produced per person at 800MB/year. In terms of paper, it would take approximately 30 feet of books to store all of this data1. Multiply this by the number of people involved with litigation, and the end result is a large amount of electronic data availably for discovery.

Canada appears to be taking limited steps toward asking for full electronic disclosure. In my experience, when requests are made for electronic documents relating to litigation, paper copies of the requested documents are produced. Or, if not paper copies, then a DVD with copies of the paper documents scanned and saved in a searchable OCR2 type format is provided.

By obtaining documents in this nature, important information can be unintentionally or intentionally omitted. This information, often referred to as metadata, may include:

• Confirmation of where the e-mail message originated;
• Unaltered e-mail message threads;
• Date and time a document was last printed; and
• The name and company of the individual who created the document.

The above list is by no means exhaustive.

The value of electronic data cannot be overstated. On one file taking place several years ago, an individual was accused of having plagiarized an essay. With no additional information besides the conflicting statements of each individual, counsel for both sides agreed to have an independent third party examine the electronic version of the contested essay.

Upon examination it was determined that both essays had been created at the exact same moment in time. Furthermore, in sworn statements by each individual, only one person was at home at the time when each essay was created.

By looking at the electronic document, and not relying on the paper copy, litigators were given additional information that was not originally available to them. Any concerns raised about using a computer forensic expert were quickly mitigated. Costs were saved and shared by agreeing on an independent expert, and additional cost savings were realized via a reduction in legal fees that would have resulted from a drawn out litigation.

Electronic information is here to stay. The way people communicate and work with one another has forever changed. For proof, just ask yourself when you last saw or used a typewriter. With the answer to that question firmly in mind, it is time to move forward in the realm of document requests. To continue to rely solely on paper documents places one in a hear-no-evil, see-no-evil world. A world which is quickly being left behind.

Dave Iverson is a manager with PricewaterhouseCoopers LLP’s investigations and forensic services group.

1 Lyman, P., Varian, H, University of California, 2003, How Much Information? 2003, [Online] University of California at Berkley.
2 Optical Character Recognition

This article was published in the June 2007 issue of BarTalk. © 2007 The Canadian Bar Association. All rights reserved.