On shows like “CSI” viewers get to watch as police and crime scene investigators find an collect all manner of computers and electronic evidence. There is another side of this story, civil litigation is three times larger and every bit as dark as anything produced for television.
A few years ago, I was sitting at a patio table soaking up the warm California sun. The late February air was calm without the slightest intimation of winter, birds chirped and a cloudless expanse of blue sky promised fine weather to come.
Back home icy winds swept across frozen lakes, spawning snow devils; in Minnesota, this was a day for wool hats, parkas and mittens.
A month before, I signed up for the intermediate forensic class at Guidance Software in southern California. This course was also available in Chicago, but Chicago in winter was not a pleasant thought.
On the day class started, an eclectic group of people filled the Guidance training center in Pasadena. About three quarters of the class came from law enforcement. The rest, like me, worked for corporations, law firms or private investigators.
The talk during breaks and meals would center on work and all manner of problems with technology, law, angry spouses and stupid bosses. It seems like the Peter Principle is alive and well in law enforcement, just like the private sector.
The police officer sitting across from me balled up his empty bag of chips and made a nice two point layup, but missed the shot. He walked over to the crumpled bag, and dropped it into the trashcan before sitting down again.
Then he asked if we were hiring.
The question gave me pause and it took a minute before I asked him – why?
At that time, electronic discovery in civil law was in its infancy. Law enforcement knew very little about the business and the roles investigators have with lawyers and the court.
He told me about the night classes in computer forensics and long hours spent as a beat cop in San Diego. Then, one day all the hard work and a bit of dumb luck finally paid off. Now he was an investigator in the crime lab, but the work had changed him. Day in and day out, the job exposed him to the worst that the world has to offer, child pornography, murders, and sexual assaults – all delivered in gruesome detail.
A sense of duty troubled him but any decent human being can only take so much of this, maybe it was time for a change. It take a very special kind of person to do that kind of work and at some point, it becomes overwhelming. Fortunately, for all of us there are people like him with a moral compass and willingness to step in and continue the work.
We talked through lunch and I tried my best to explain how it works in my world.
Criminal law deals with crimes against the state and law enforcement with a badge and a gun can seize the defendant’s computer by force. The state prosecutes the offense and if found guilty, the person accused of breaking the law is fined, jailed or both.
In a civil suit there is not likely to be any seizing of hardware, all computers and electronic equipment stay with the defendant. In some matters, the court will allow a defendant to perform a “self collection”. This method allows the defendant to acquire all electronic evidence specified by the court order, using their own resources, or a third party they hire and manage.
Sometimes we work for the plaintiff and sometimes for the defendant; always we have a contract the spells out exactly what to collect and from whom. The result usually involves the loser giving up payment, property or some form of compensation to the opposing side.
Often a lawyer is present to oversee the collection. In some cases, the lawyer who is watching the proceedings is our client, sometimes from the opposing side.
One thing you usually learn the hard way is; “A lawyer’s job is to find weakness and exploit it”.
Lawyers, at least the good ones, figured out the best way to have evidence thrown out is to question how it was acquired. When you collect data from complex networks that you are unfamiliar with, under tight schedules, coupled with attorneys watching over your shoulder – there is a high probability something will go wrong.
Even if you find the problem and correct it, a good lawyer can spin that incident into stories that cast doubt on the evidence and your competence.
A hybrid version of criminal and civil law involves the joint efforts of private industry and law enforcement. These cases are complex and consume more resources than commercial interests and government entities can mount on their own.
In the novel “uncertain origin”, the business of tracking counterfeit drugs is a hybrid. Jeremy Cole is a contractor hired by a large pharmaceutical company. They work with the FDA and other government agencies to put criminals out of business and behind bars.
P.S.
After lunch and the conversation with the officer, he said, “it wasn’t for him”.
If you really want to know more detail about this subject follow these links:
Wiki page for Digital forensics
Wiki page for Electronic Discovery
The High Technology Crime Investigation Association (HTCIA)
The Electronic Discovery Reference Model (EDRM)
Interpol – Combating pharmaceutical crime
The National Association of Drug Diversion Investigators (NADDI)
