by Sean L. Harrington
Significant legal and ethical challenges confront digital forensics
investigators, for which some may not be well prepared. Just as many
lawyers may be confounded by technology in dealing with digital
forensics matters, many digital forensics experts lack formal legal
training, and are uninformed about their special obligations in the
employ of a lawyer. These obligations include zealously guarding the
attorney-client privilege, applying the work product doctrine,
developing reports, exhibits, and testimony (that are both admissible
and understandable to a lay jury or judge), and conducting their work in
a way that does not compromise the integrity of the case or the rights,
privileges, or immunities of the retaining party.
In certain situations, such as where digital forensics examiners serve as special masters (see Fed.R.Civ.P. 53) or third-party neutrals (see Model Rules of Prof’l Conduct R. 2.4 cmt. 1), they are regarded as officers of the court.
The use of a third-party neutral has significant advantages. See, e.g., Craig Ball, Neutral Examiners,
Forensic Focus,
http://www.forensicfocus.com/index.php?name=Content&pid=346. First,
as an officer of the court, the expert is subject to the court’s
inherent powers, thereby providing an extra measure of accountability
for misconduct (e.g., confidentiality breaches). Second, a
third-party neutral is ostensibly impartial, which impartiality
presumptively aids in the fact-finding process and administration of
justice. Third, the third-party neutral is aptly situated to resolve
discovery disputes, including issues of confidentiality, relevance, and
privilege, and, if necessary, obtain court intervention or in camera review to resolve such disputes.
But if the examiner is not appointed by the court, but rather is
retained by a party to an adversarial proceeding, he or she is
nevertheless obliged to ferret out the truth…
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