Along with changes in the eDiscovery and digital forensics industries, significant changes abound for experts as well. Many stem from technological adoptions due to the pandemic, but some of those elements were in place even before. In this post, we’ll explore some of those changes with respect to cost, consolidation of experts, and new case types.
Cost
With the increased use of video-sharing technologies like Zoom, the cost of utilizing an expert has been greatly reduced. Without having to pay for travel, clients benefit from having experts remotely join hearings, depositions, and trials. These remote activities had been a small part of the legal world before COVID, but they are far more widespread now. Although some courts are sliding back into expectations that everyone is present in person, that number is far fewer than pre-COVID.
Another benefit is the luxury of choosing an expert anywhere in the country. The expert’s location is no longer a factor in deciding who to hire. This is particularly important since experts, by nature, are highly specialized in certain technologies or industries. In a recent ACEDS webinar about changes in the forensics field, we discussed this topic with Mary Pat Poteet – go to timestamp 18:45 to hear more about supervised collection replacing self-collection and how that can be effective.
Consolidation and M&A
The eDiscovery industry has significant mergers and acquisitions among software providers and vendors. The digital forensics industry does not have this to the same degree, but it’s crucial that experts know the moving and shaking happening around them because it might affect their opinions or use of software within their investigations. During the same webinar mentioned above, Mary Pat Poteet discussed preparation for that in combination with an expert retiring by saying: “if you know your person is retiring, you have to talk to them about whom they have mentored so you can make sure you have someone that knows the questions to ask particularly regarding tool consolidation.” [Go to timestamp 53:30 to hear more.]
New Case Types
Forensics experts are now being used in cases where we weren’t in previous years; for example, construction litigation and medical malpractice. This comes as technology is more fully embedded in the workplace, so experts are needed to interpret user activities on those technologies.
For example, construction litigation used to be focused on paper, but now change orders are created using electronic systems or text messages. All that information is discoverable from third parties or contractors that are involved. This becomes more important with construction failures or issues – there is a lot of documentation from multiple angles, which includes both corporate-owned mobile devices as well as personal devices used by those same corporate entities. The accessibility of geolocation data from devices themselves, carriers, and third parties like Google has also evolved considerably, putting people and their devices in places at particular times during incidents.
We have also seen an uptick in using experts in employment litigation, specifically with intellectual property theft. Finding where users took information with them at the conclusion of their employment has always been a focus of our forensic work, but we are finding that we are being engaged by employees and companies in more equal measure now.
Conclusion
Although forensics and the subsequent expert work done for forensics cases may not seem as ubiquitous as eDiscovery, some movements in the industry mirror some in the eDiscovery field. New case types, a changeover in the expert field, and changes in software all contribute to shifts that are important to note if engaging a forensics expert in the future.
Dr. Manes routinely serves as an expert witness including consulting with attorneys on data preservation issues. He contributes academic content to peer-reviewed journals and delivers classroom lectures. See his full CV at gavinmanes.com.
Dr. Manes has published over fifty papers on eDiscovery, digital forensics, and computer security, countless blog posts, and educational presentations to attorneys, executives, professors, law enforcement, and professional groups on topics from eDiscovery to cyber law. He’s briefed the White House, the Department of the Interior, the National Security Council, and the Pentagon on computer security and forensics issues.
At the University, Dr. Manes formed the Tulsa Digital Forensics Center, housing Cyber Crime Units from local, state, and federal law enforcement agencies. He’s a founder of the University of Tulsa’s Institute for Information Security, leading the creation of nationally recognized research efforts in digital forensics and telecommunications security.
