July 29,
2015
How Digital Forensics Can Help: Personal Injury Cases
Regular
readers of this blog have no doubt observed that I try to make the case quite
often that digital forensics is a valuable resource for legal practitioners
involved in many different types of litigation and investigation. Toward that end, I’ll be constructing a
series articles over the next few months entitled “How Digital Forensics Can
Help” which will offer more detail about how digital forensics can help in
specific types of cases. First up:
Personal Injury.
Why start
with personal injury? In all my time
conducting criminal investigations in law enforcement and as a private practice
digital forensic practitioner, I’ve never been called upon to work a personal
injury case. I’ve also seen that the
most likely explanation for this is that personal injury attorneys (including
prosecutors who litigate serious accidents) just don’t consider it as a
resource. But just because it isn’t
considered doesn’t mean it shouldn’t
be. Indeed in virtually all types of
cases, I’ve observed that the legal practitioners don’t always have a firm
grasp on what technical expertise (i.e., digital evidence) they may have
available to them in any given case. With articles like these, we hope to close
that gap.
Who Can Use Digital Forensics in Personal Injury Cases?
In any given
personal injury case, there are several parties involved. Not only is there likely a plaintiff and
defendant, but insurance companies are also key players in these cases. Plaintiffs and defendants will have their
counsel and insurance companies will have their own separate counsel and
investigative staff. Each and every one
of these participants in the case may have need to hire a digital forensic
expert to help prove or refute a claim. Not
all claims are legitimate, in fact fraud is an ever-growing business, so if you
can use a digital forensic expert to help refute a claim against your client/customer
and avoid paying out large sums of money, it might be worth it to help save the
bottom line.
Litigators
involved in these cases also have a genuine need for digital forensic
expertise. Whether the case involves
slipping on a grape in a grocery store or a serious injury motor vehicle
accident where one party may have been texting-while-driving, digital evidence
is everywhere. Beyond evidence of the
actual event, there may be statements via text, pictures, videos or other
documentation about the incident by one or more parties since it happened that
can help impeach statements or testimony and bring the case to a successful
conclusion faster.
What Types of Evidence Can Be Useful in Personal Injury Cases?
If society
has learned one thing over the past several years since the advent of the smart
phone, it’s that data is everywhere.
Long gone are the days when data mostly resided on your home PC or
laptop computer. Now, everyone carries a
microcomputer in their pocket, tracking their every move. Even better, it’s equipped with a camera
capable of taking pictures and video in high-definition and a microphone for
recording audio along with video or as a stand-alone feature. Smart phones are documenting machines. If they weren’t, companies wouldn’t seek to
have you put apps on them to be able to market products to you. They document not for safety or security, but
to make big data companies and retailers lots and lots of money.
But this
fact has an ancillary benefit for us in digital forensics. It means that the micro-computer that is
tracking your moves in order to market certain products to you also stores
valuable evidence for use in investigation and litigation. Text messages, pictures, videos, notes,
voicemail, call logs, web history and more are all extremely valuable pieces of
evidence that may be obtained from smart phones. If you’ve never thought about it before,
think now about how much you use your smart phone and what you use it for. Then, think about all the high-tech tracking
devices it has installed in it -- GPS, cellular antennas, wireless internet
antennas and Bluetooth. All of these
things leave a digital trace in the form of metadata (see our article on Metadata here)
on your device and can be retrieved by most mobile forensic tools and analyzed
and reported by a competent examiner. It’s
a digital mountain of information that most users can’t access or even realize
is present on their device… All you have to do is ask for it!
Digital Forensics in Personal Injury Case Application
So now that
you know what is accessible on the device, how can you use it to benefit your
case? First, it’s important to realize
that the “CSI Effect” is an actual phenomenon.
To believe that we can extract data that will be the smoking gun in your
case is (mostly) not realistic. However,
if you take the totality of the circumstances in your case, to include the
digital forensic findings, the data that we can retrieve may very well paint a
much clearer picture of what was going on in your case.
The best
example in personal injury cases is texting-while-driving, which is a big deal
in motor vehicle crash personal injury cases these days. Most personal injury attorneys would love to
have proof that the opposing party was texting at the moment of the
collision. Unfortunately, that’s
probably not realistic. However, what we
can show is the activity leading up to that collision. For example, if the opposing party was on
their way home from work and we know this to be a 20 minute commute and the
collision happened 7 minutes into the drive, that’s one piece of the
puzzle. If they were involved in a text
conversation prior to and during that 7 minutes directly leading up to the
collision, that’s another piece. If they
were also searching for places to order pizza on their mobile internet for when
they got home, that’s yet another piece.
All of these instances are recorded on the device with dates and times
and sometimes, specific location. In the
case of Facebook Messenger, messages that are sent routinely have the
geo-location (latitude & longitude) of where the person was when the
message was sent, providing a message-by-message diagram of where they were,
further bolstering the claim that they were in fact texting-while-driving directly
prior to that collision. What’s even
better, this information can’t be deleted or altered by most end-users.
Texting-while-driving
is probably the most universally understood example of the value of digital
forensics in personal injury cases, but it’s just one example. The overall point is, if you have any
evidence that a mobile device was involved in the injury of another, it pays to
call a digital forensic consultant as soon as you know. It’s best for the client, it’s best for you
and it helps everyone get on with their lives much quicker in the wake of what
may have been a tragic accident.
Author:
Patrick J.
Siewert, SCERS, BCERT, LCE
Principal
Consultant
Professional
Digital Forensic Consulting, LLC
Based in
Richmond, Virginia
Available
Globally
About the Author:
Patrick Siewert is the Principal
Consultant of Pro Digital Forensic Consulting, based in Richmond,
Virginia. In 15 years of law
enforcement, he investigated hundreds of high-tech crimes, incorporating digital
forensics into the investigations, and was responsible for investigating some
of the highest jury and plea bargain child exploitation cases in Virginia court
history. A graduate of both SCERS and
BCERT (among others), Siewert continues to hone his digital forensic expertise
in the private sector while growing his consulting business marketed toward
litigators, professional investigators and corporations.
Twitter: @ProDigital4n6
