How Legal Teams Can Leverage Digital
Forensics to Triumph in Tough Business Litigation
From accusations of discrimination against employees to a breach of contract between two business partners, every professional relationship has the potential to result in a lawsuit and litigation. As more interactions are taking place online, digital trails of evidence left behind can help law firms and their clients prove their cases in court and avoid hefty legal consequences. This is enabled in part by modern digital forensics. Digital forensics is a fast-growing branch of both criminal and civil law that applies investigation techniques to digital crimes and can help legal teams immensely in their pursuits for the truth.
The role of digital forensics in business litigation (with examples)
Digital forensics is now an essential part of many investigations into business and employee misconduct. The presentation of digital evidence in the courtroom can provide the bulk of evidentiary support needed to win business cases.
The most popular forms of business litigation tend to include breach of contract, auto accidents, discrimination against employees or customers, harassment, injuries, and more. No matter which challenge, digital forensics can make a difference. Here are a few real examples:
Enron sins exposed by digital forensics investigators
Undoubtedly one of the biggest financial business scandals of the century, Enron is a great example of the power of digital forensics. The energy company collapsed after it’s fraudulent accounting practices, and deep-rooted corruption was exposed. The case resulted in billions of dollars in lost assets and landed several executives in jail. How was the willful misconduct proven? This win can be credited, in large part, thanks to digital forensics. During the case, investigators collected and analyzed over thirty terabytes of data, including the emails of about 600 employees. These communications and data points empowered the legal team to unravel and prove just how fraudulent and intentionally deceitful the company was.
Legal action taken against nine culprits charged with $24 million COVID-19 Fraud Scheme
While the U.S. Paycheck Protection Program, coronavirus relief funds, and small business association programs are meant to help businesses during hard times, some criminals are exploiting these aid programs with a host of fraud schemes. In one recent case, the owner of a talent management business and several others were charged with filing fraudulent paperwork to receive $24 million in assistance – $17 million of which they’d received before the scheme was discovered. The United States Department of Justice released the details of the case, which mention that all parties involved are charged with wire fraud and bank fraud.
This case is currently open, and those charged are considered innocent until proven guilty. This means that legal teams on both sides must work to prove their case in court. In today’s digital age, fraudulent applications, wire fraud activities, and more leave a treasure trove of evidence behind. In this case, both legal teams, with the help of digital forensics experts, have plenty of evidence to work with as they strive to convict or exonerate the accused.
Theoretical breach of contract with an unethical opposing party
A material breach of contract can have dire consequences on a business relationship. These situations are further complicated by countersuits and intense disagreements on who is in the wrong. Battling these situations relies on having a single source of legal truth, the contract. However, what happens when two parties are presenting different versions of the signed contract? How can the original contract be recovered? This is an example where digital forensics can help. For example, in this case, an expert can conduct analysis to determine the integrity of each document and whether they’ve been tampered with. Digital forensics technology can also be used to recover deleted files. This evidence, when gathered appropriately, can then be presented in court to not only confirm the validity of a contract but also further prove a case when there is foul play from one of the parties.
Apple hit with data theft and employee betrayal
Data theft can cost companies to lose millions of dollars in sales, competitive advantage, and more. 44% of firms believe that IP theft is the underlying reason behind an insider threat. For example, Xiaolang Zhang, an employee at Apple who had worked on their self-driving car project, left to work for a competitor. Digital forensics investigators were asked to assess Zhang’s company-issued devices. They noticed a spike in the network activity and found digital evidence showing that he had been accessing and downloading vast amounts of data, which was airdropped to his personal phone. The evidence against Zhang included recovered files, physical access badge records, and CCTV records. In cases like this, digital forensics can also be used to analyze the employee’s emails, text messages, social media communications. This can lead to the discovery of employee interactions with the competitor, potential proof of any solicitation, bribes, or coercion, and also determine what information, such as trade secrets and intellectual property, was shared.
Types of evidence digital forensics can provide in business litigation
Now that trade secret, intellectual property, and business data are kept in digital form, any crime involving theft of data will also take a digital form. Having a licensed forensics effort is critical to ensuring the right evidence is discovered, even when criminals attempt to cover their tracks. The evidence gathered must be analyzed, maintained, and presentable in a way that will make it admissible in court. Digital forensics procedures include:
- Acquisition of data: Gathering data from computers, mobile phones, and any electronic devices involved. This includes legally gaining access to communications such as emails, social media, texts, voicemail, call logs, and more.
- Recovery of lost data: Bringing back damaged or lost files, including finding that attempts were made to obscure or destroy evidence.
- Analysis of data: Looking for patterns in data sets, analyzing cell site data, mapping keywords, and more.
- Presentation of data: Interpreting computer data into legible formats which can be presented in an understandable way by a trusted digital forensics expert witness.
While digital forensic findings can be some of the most valuable evidence in a courtroom, care must be taken to collect, analyze, and – crucially – preserve the evidence for proper presentation in order for it to be legally admissible. To be used in court, the evidence must have been gained lawfully and with full due diligence. The evidence must also be presented in a format that is physically usable in court and understandable to the participants in the case.
Cautions and limits to digital forensics in business litigation
The effectiveness or ineffectiveness of digital forensic evidence hinges on the skills of the investigators. Poorly retrieved or maintained digital evidence can be the downfall of a case. If the evidence has been unlawfully obtained or tampered with in such a way that obscures important facts, the evidence might be useless in court. If the defense can find some other way to cast doubt on the integrity or relevance of the evidence presented, a case that relies on digital forensics can simply fall apart.
Several highly emotive high profile cases have occurred in which serious criminal proceedings were thrown out of court due to mishandling or untimely presentation of digital evidence. Even in the hands of trained police officers, digital evidence can become inadmissible. Cases like these, in which inadequately trained staff jeopardize the course of justice, clearly highlight the need for skilled digital forensics professionals.
The kind of crime most likely to seriously damage a business is increasingly digital – 15.1 billion records were exposed in 2019, an increase of 284% on the previous year.
Digital crimes leave digital evidence. Digital forensics experts are critical to uncovering and utilizing this information to uncover what truly happened and win cases. They are a part of a specialized, professional discipline whose ability to preserve and present credible evidence can make or break a case.
The options available to experts go far beyond the days of simply being able to read an employee’s old emails. The technologies used in digital forensics undergo continuous development and require specialist knowledge to use effectively. Any organization requiring digital evidence to build a business litigation case should employ up-to-date experts in the subject.
Cyber Centaurs provides a dedicated service to retrieve, assess, and preserve digital evidence in even the most complex cases. In addition, the team provides expert witness services to ensure that evidence is presented in court in an accessible and professional manner to give business litigation cases the best chance of a quick resolution. Visit Cyber Centaurs to learn more about our digital forensic services.