Forensics Without Borders
By Dr. Robert D. Moody
Posted: 6th April 2016 09:25
Recently I was asked to reflect on my graduation from Law School in 1993 and my graduation dissertation addressing the effects technology would have on the US Statute commonly known as the “Long Arm Statute.”
To briefly summarize, I addressed the question as to whether or not the Long Arm Statute in its current or some future altered form would still provide US courts the ability to obtain information needed from entities in foreign jurisdictions.
In 1993 my analysis determined that the requirements of production from foreign entities would only increase and the US Court system would always find a way to get the information necessary.
It is now 23 years later and where my research so many years ago seemed cutting edge, the US and the rest of the world have taken up the topic with the provisions of the “Safe Harbor” and “Safe Harbor 2” doctrine and we all seem to be on a path of information sharing like never before.
Now that the rules for sharing have been laid out, we need to turn to the practical part of the process. We are entitled to the information but how do we get it? What do we do if we get the wrong information?
As the world continues to gets flatter the need to properly identify relevant data and apply the appropriate limitations is more important than ever. Once, a simple claw back provision would protect and recover information that was improperly obtained.
Now with privacy and disclosure issues are controlling the discovery process. All parties involved are facing the paramount tasks of proper, relevant production. Welcome to Forensics without Borders!
Forensics without Borders is a concept of employing Digital Forensic Experts who have the ability to bridge the gap between the Information Technology World, Electronic Discovery World and the Legal World. It is the special hybrid of professionals that can properly navigate the technical and legal mine fields that are awaiting the parties in cross border collection and production efforts.
Where this article is not suggesting that one discipline is superior to another, it is suggesting that a collaboration among experts (IT, E-Discovery, Attorney and Forensics is necessary to quickly and efficiently maneuver the discovery process.
IT professionals bring industry and organizational specific knowledge that is key to properly locating the requested information. E-Discovery professionals have expertise in processing, extracting and producing responsive data as well as assisting the Legal professionals whose expertise is clearly set in the subject matter and the legal nuances of the case.
Unfortunately, none of the professionals discussed are experts in obtaining and preserving data or dealing with the multi-jurisdictional collection concerns of a flatter more connected world. This is the expertise and domain of the Digital Forensics Expert.
Properly trained and experienced Forensic Experts are masters in analyzing and identifying where information currently exists but additionally where the information was or should be. They are masters at collecting and preserving files in native format and also working with the plethora of database, storage and cloud based systems that house the information most often sought by litigants.
The Forensic Expert has the ability to not only collect and preserve information but also provide understanding and clarity to the reasons why data exist in its current form or is missing altogether.
Having served in the every role described herein, including the consumer litigant, I question why the employment of Forensic Experts to identify, collects and preserve information (to create a framework of the available data) is not seen as an industry best practice.
Using this concept as a best practice has proven itself to save both time and money, reduce challenges to the evidence and create a more precise, on point production.
Isn’t this what the discovery process is really about?
Dr. Robert D. Moody is the Founder and CEO of FDS Global. He is certified in the areas of Information Systems Auditing, Technology, Security, and Computer Forensics.
Dr. Moody has provided assistance to a wide range of Plaintiff and Defense attorneys, business, and governmental agencies. He has served as an expert witness in both Civil and Criminal matters in both State and Federal court. Mr. Moody received his B.S. from Nova Southeastern University and his J.D. from St. Thomas University School of Law. Dr. Moody is currently pursuing a Postgraduate Diploma in Global Business from Oxford University.
Dr. Moody can be contacted on +1-954-727-1957 or by email at firstname.lastname@example.org