August 18, 2022

By Brian Babcock

The increasing prevalence of electronic communications brings with it a renewed focus on electronic discovery. Most parties and lawyers lack the expertise necessary to be confident that they will retrieve electronic documents completely in a form in which they are both unchanged and searchable.

Even where the party may have the ability to preserve and retrieve documents like text messages, it is doubtful that a court or tribunal would accept the evidence of a party or their employee as to the completeness, accuracy and fairness of the retrieval. Courts are taking the need to have unbiased expert opinions to assist a judge seriously. This is true even in Small Claims Court.

So, it is probably unwise to have your cousin Alvin retrieve documents as part of electronic discovery, even if Alvin knows a lot about computers. The judge may not be satisfied as to Alvin’s expertise, and that is compounded by the risk that Alvin is biased.

This has resulted in growth of digital forensic specialist practices. Digital forensics is the science of finding digital evidence on computers and computing devices in a manner acceptable for use as evidence in court. Digital evidence may be retrieved from all sorts of devices including cell phones, tablets, laptops, workstations, servers, external hard drives, thumb drives, or the cloud. A true digital forensic expert will retrieve, index and store the evidence so that it can be methodically imaged, authenticated, analyzed and presented in court.

The retrieval and storage should be customized to suit the specific needs of the case. Some digital forensic specialists have backgrounds in engineering or accounting while others work closely with allied professionals. Typically, they spend much of their time working on corporate security matters such as internal surveillance or threat evaluation. They may also assist in workplace investigations.

Digital forensic experts are difficult to find in Northwestern Ontario. Even in Thunder Bay, they tend to combine this expertise with other computer specialties. If you have a complex matter, it may be necessary to bring in specialized expertise from a larger centre. This of course compounds costs but is a worthwhile investment if your case is a $1,000,000 construction dispute or a hunt for substantial missing marital assets.

Digital forensic specialists are not cheap. You get what you pay for.

If your case is of limited value, you may discover that the expense of a digital forensic investigation is disproportionate to the amount in issue. If that is the case, you (or your lawyer) will want to make sure that there is provision in the discovery plan (if in Superior Court) that reflects the absence of digital forensic investigations. Under Simplified Rules or in Small Claims Court, the demands for complete discovery are lessened. However, to the extent that you want evidence that you can rely on, you will have to balance your judgement between cost and completeness.

In our opinion, cases requiring digital forensic evidence or beyond the ability of most self-represented parties to manage. Even many lawyers have difficulty in this area. With the increasing awareness of judges about the reliability and independence of experts, retaining the right lawyer and having them source appropriate experts becomes increasingly important.

At Weilers Law, we work with experts of all sorts, including digital forensic specialists. If you have a case that is important to you, we may be the right lawyers for you.