What you don’t know about digital forensics will hurt you

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John J. Carney and Brendan Kenny

In today’s legal landscape, the intersection of technology and law presents challenges, particularly in the realm of digital forensics. A recent case before the Indiana Supreme Court involving a driver colliding with a pedestrian underscores the complexities that attorneys must navigate when balancing discovery requests with privacy rights in civil litigation. This case illustrates the potential pitfalls that can arise when lawyers lack a deep understanding of digital forensics. It’s crucial for attorneys to develop professional relationships with digital forensic investigators who can help the court make more educated decisions in discovery disputes.

This article explores what can happen when attorneys do not effectively leverage their digital forensic investigator’s subject-matter expertise to advance. Lawyers who effectively leverage this expertise advance sounder, more sensible, and more defensible positions on the discovery, analysis, and production of electronic evidence.

The trial court’s decision

Smiley was driving in Carmel, Indiana, in December 2019 when she struck Jennings, who was walking across the street at the time of the accident. Jennings claimed Smiley was negligent and sought to inspect her cellphone to determine whether she was using the Waze navigation app at the time of the accident, suggesting it could have distracted her.

The discovery dispute began with Jennings’ discovery request:

Plaintiff has retained an expert for purposes of extracting, without modifying, data reflecting the utilization of the subject phone on December, 19, 2019 (the date of the accident). Similar information has been produced by Non-Party Verizon for talk activity. (See, Exhibit A). Plaintiff, pursuant to Trial Rule 34, asks the phone be inspected at a Court Reporter’s office convenient to the Defendant, Smiley, and her counsel, on or about March 8, 2021, at 1 p.m.

Then Smiley objected:

This request is unduly burdensome, overly broad, and seeks information not relevant or designed to lead to the discovery of admissible evidence. Defendant is also entitled to an expectation of privacy as to her property and records she attempted to maintain as confidential. A phone download is an overly burdensome, obtrusive way of gathering information. Even if the phone did contain relevant information, Plaintiff is still not entitled to download information from Defendant’s phone. A forensic examination of the cellphone requires Defendant to give to a third party a piece of her property that contains private conversations with her friends and family, pictures of others and conversations with others who have not consented or been given an opportunity to object, sensitive work-related information, and potentially information about her own medical issues, among other sensitive issues.

A year later, Jennings moved to compel discovery of Smiley’s cellphone evidence, seeking to find out if she was using Waze at the time of the accident. Smiley had said before in a deposition that she had been using the app when she started her drive, but was not using it during the accident.

At first, the trial court allowed this inspection, but later reversed its decision due to privacy concerns and the lack of strong indicators that Smiley was using her phone during the incident.

During the trial, evidence showed that Jennings was crossing at a location without a crosswalk or pedestrian signs, and nothing suggested that Smiley was distracted, driving recklessly, or speeding. The jury found Jennings 90% at fault for the accident.

On appeal

Jennings appealed the denial of the motion to compel, arguing the trial court abused its discretion when prohibiting him from inspecting the phone evidence.

You can’t look at the appellate record without understanding the key role that the standard of review played in this case. An abuse of discretion will be found only when the trial court’s decision is clearly against the logic and effect of the facts before it, or the reasonable, probable, and actual deductions drawn from the facts.

Here, the Indiana Court of Appeals ruled that the trial court’s denial of the motion to compel was not an abuse of discretion, emphasizing that the burden of the proposed cellphone inspection outweighed its potential benefit. The court highlighted the lack of compelling evidence that Smiley was using her phone during the accident.

Now the Indiana Supreme Court is considering how to balance the discovery of cellphone information with privacy rights where a car accident victim wanted access to phone evidence of the driver who struck him.

“It began broadly, but at the end of the day…” The words of Jennings’ counsel at oral argument point to the fundamental problem in Smiley: neither side explained to the other side and to the court what they wanted to happen — and why they wanted it to happen. The broadness and lack of understanding of digital forensics when this discovery was first requested has plagued this case since then.

Jennings’ lawyer also argued that the requested evidence could have contradicted the driver’s testimony and impacted the outcome of a jury trial because:

• If this jury knew that she was lying about having Waze on, at the end of the day they would say “okay we don’t trust her…”
• If they found Waze was running within an hour of the accident, then they could find out if Smiley was interacting with the app — which allows users to tap on their screens to report traffic delays and accidents.
• Because Smiley said in her deposition she wasn’t using the app, just that she had checked the app before starting her drive, Jennings’ attorney said that contradicting evidence would prove she was a liar.

Smiley’s attorney countered that accessing her unlocked phone posed overwhelming privacy concerns, because:

• “A smartphone contains far more information than a personal diary.”
• Even if Jennings only looked for the hour of Waze data, there were no safeguards to prevent them from accessing texts, emails and other personal information.

Zooming out to a 10,000-foot view

The battle Smiley encapsulates many challenges legal professionals face in the digital age. These challenges are reshaping how attorneys must approach discovery and digital forensics.

The federal and state rules of civil procedure and their amendments reflect quickly evolving standards to accommodate the explosion of electronically stored information (ESI) as a source of potential documentary evidence. These technological and legal changes require that attorneys are competent in the use and understanding of information technology. (See Minn. R. Prof’l Conduct 1.1, cmt. 8.)

Both the requirements of technical competence and the demands of courts require that attorneys demonstrate what decisions were made, what assumptions were relied upon, and how those were derived, validated, and documented before a discovery request or response is signed. That is why savvy attorneys retain skilled digital forensic investigators from the start — precisely because their technical expertise and their ability to translate jargon and complicated concepts into plain English are invaluable to the attorney requesting or responding to discovery.

Takeaways

Can we all agree that both sides in Smiley would have benefited from a deeper understanding of the digital evidence at hand? Because if they had a deeper understanding, they may have asked themselves the following questions — for starters:

• Did the Waze app own/control the phone screen?
• Did the Waze app own/control the phone speaker?
• Did the Waze app own/control the phone microphone?
• Was the Waze app communicating with the cell towers?
• Was the driver unlocking and entering a passcode on the phone?
• Was the driver handling the phone, moving it from horizontal to vertical, and so on? What was the phone’s gyroscope telling us?

Digital forensics isn’t magic. An examiner might have performed experiments on Waze behavior on a test phone as a mirror of the subject or specimen phone. And the examiner may have subpoenaed the Waze account to produce evidence from Google. That’s why these exams take months, and why it’s a good idea for the digital forensic investigator to start early.

The distraction is in the details

Distraction is a thread running through many civil cases, especially auto and personal injury cases. Skilled digital forensic experts and savvy attorneys understand that a distracted party before and during the incident often becomes a spoliating party after. Thus, the forensic analysis necessary to uncover distraction, also uncovers actions taken to destroy evidence of that distraction.

Take this example, based on a real case:

• A trucker gets in car accident and harms the other driver.
• The other driver sues.
• The dash camera in the truck, shows the trucker, but not the phone.
• The injured driver seeks access to the phone, and the resulting mobile evidence shows the trucker was using a streaming app leading up to the accident, and the trucker attempted to destroy the evidence.

The same distraction-and-spoliation nexus could be at work in Smiley. But we will probably never know without conducting a forensic phone examination.

In addition, it’s hard to see how a protective order wouldn’t meet the plaintiffs’ concerns:

• Court orders and protective orders are effective legal instruments to control confidentiality before, during, and after trial.
• The penalties for violating protective orders can be steep — whether the violator is a party, a counsel.
• Protective orders can limit the time, place, scope, and manner of the intrusion.
• Plaintiff’s examiner can be controlled to produce only responsive evidence during a designated time period.
• Other limitations include only responsive evidence for a particular named app. Only responsive evidence for a short list of specific, designated events.
• Experts, parties, and counsel can be sanctioned for breaches of protective orders.

Best practices

Lawyers who adopt best practices can effectively manage digital forensics. Staying up to speed on the technology is a requirement for both lawyers and digital forensics experts.

But it also takes non-technological knowhow to realize it’s a bad idea to: (1) wait to do interrogatories and requests for production; (2) allow the phone to be lost, traded in, wiped, damaged, or waterlogged; (3) wait to move to compel after the other side stonewalls; and (4) fail to work with a trusted digital forensic expert on this from the beginning.

Progress, not perfection

Smiley reminds us that protracted and costly civil litigation disputes aren’t always just about digital forensics, or even about technology. As technology continues to permeate all our lives, lawyers need to grow with it. Lawyers who embrace the complexities of digital forensics will not only protect their clients more effectively, but also navigate the legal landscape with greater confidence. Understanding and applying digital forensics is essential for attorneys seeking to meet the demands of modern litigation. And because upholding the integrity of the legal process and safeguarding the parties are non-delegable duties, we really have no choice.

John J. Carney, Esq., is chief technology officer of Carney Forensics.

Brendan Kenny is one of Hellmuth & Johnson’s top legal writers with prior experiences working for both Minnesota and California Attorney General’s Offices.

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