Wednesday, July 29, 2015
How Digital Forensics Can Help: Personal Injury Cases
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.
Patrick J. Siewert, SCERS, BCERT, LCE
Professional Digital Forensic Consulting, LLC
Based in Richmond, Virginia