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Global numbers show the urgency. And with this surge, law firms must not only understand how to argue cyber matters in court but also how digital evidence is collected, preserved, and presented.
In cyber litigation, digital evidence covers far more than just a suspicious email. It includes:
Digital forensics is the science of recovering, preserving, and analyzing digital evidence. Digital forensics has an incredibly valuable role in cyber litigation:
For legal service providers, partnering with specialized digital forensics experts can enhance the quality of evidence presented in court.
The initial phase involves identifying the scope of potentially relevant evidence. Identification involves locating endpoint devices, servers, databases, cloud accounts, and mobile devices that may be relevant. In a more advanced scoping exercise, we also include Software as a Service (SaaS) platforms, such as Slack, Teams, Zoom, etc., which are rapidly becoming focal points in litigation.
Evidence is potentially very ephemeral; overwritten, deleted, or modified evidence is often altered within hours of the incident. Preservation puts the evidence beyond the risk of spoliation. Preservation is designed to ensure that the evidence’s legal defensibility. Techniques include:
This step is the controlled acquisition of data via forensic-grade tools. Collection is not the same as “copy-paste”. A collection done incorrectly has the potential to corrupt metadata. If you do it right, it will create a verifiable snapshot. Methods include:
The collected data is processed to remove irrelevant material and isolate useful logs, communications, and artifacts. For example, examining firewall logs along with the endpoint login attempts helps to establish or disprove unauthorized access.
This is where the raw bytes become arguments. For example:
Every action needs to be documented in order to preserve the chain of custody of the evidence. You must document when the evidence was collected, by whom, with what tools, and in what method it has been maintained. The courts want this level of detail.
Eventually, the evidence is prepared for the court. Commonly, the mistake is presenting too technical data with no context. Logs need to be converted into visual timelines, diagrams, or summaries that judges and juries can digest.
Also read: How Legal Support Teams Make Data Protection Policies Stronger Than IT Alone
Even with process discipline, cyber litigation introduces complexities that firms must anticipate:
To effectively manage digital evidence, law firms should consider the following best practices:
Implementing these practices can significantly enhance the effectiveness of legal proceedings involving digital evidence.
Once a breach occurs, it is merely a matter of following the trail of brittle digital evidence to the courtroom. Collection or preservation mistakes can often mean cases and credibility lost. Law firms and legal service providers don’t have to be experts with every forensic tool, but they do need to understand the process, the potential pitfalls, and how to work most effectively with experts.
It is the story that wins or loses modern cyber litigation if treated firmly, because digital evidence is not just technical data.