The Role of Experts in Data Collection

In many eDiscovery cases, teams of experts handle the collection of traditional and modern data following a proven, standard process. These experts ensure the data is authenticated, which is crucial for maintaining the integrity of the evidence. However, there are instances where evidence such as text messages, social media posts, or chat applications involves just a few exchanges that are critical to the case. In these situations, simple workflows like screenshots, data downloads, or reviewing data in spreadsheets from various collection tools are often used.

Methods of Data Authentication

Regardless of the data acquisition method, authentication is essential and can be achieved in several ways:

Data Forensic Experts

Forensic experts can authenticate data from collections, ensuring that the evidence presented actually occurred. Their expertise is invaluable in maintaining the credibility of the evidence.

Mutual Agreement Between Parties

During the discovery process, both parties can agree that conversations, social media posts, etc., were indeed created by the custodian. This mutual agreement can simplify the authentication process.

Self-Collection

Data downloaded from social media sites goes through a process where it is packaged in HTML or other formats, memorializing activities in a document form. Although this process requires authentication by the person downloading the data, legal teams can be confident that the data is user-created.

A Word of Caution: Ensuring Authenticity

One significant caution in data authentication is the potential for clients to provide seemingly real evidence that may not be authentic. An illustrative case is Rossbach v. Montefiore Medical Center, where a screenshot of a text message exchange was presented as “smoking gun” evidence. The issue was that the screenshot’s emoji was a newer version than when the incident occurred, indicating the exchange was fabricated. eDiscovery expert Doug Austin has written a comprehensive article on this topic.

Here’s how easy it is to create a “real-looking” text exchange. Does the below text message exchange look authentic?

Unless you are a trained forensic professional, it likely does look authentic. However, tools like ifaketextmessage.com make it fast and easy to create such exchanges. (Note: This is just an example and not related to the Rossbach v. Montefiore Medical Center case.

Importance of Verification

In most cases, both parties would agree on the authenticity of text messages and verify them with the other person’s device if the exchange wasn’t deleted. The critical point is to never overlook the verification or authentication of data received from the other party. Ensuring the integrity of evidence is paramount in maintaining trust and achieving fair outcomes in eDiscovery.

In our last edition in the blog series out this week, you will learn how to best review data, documents or a hybrid approach and using this data to tell the whole story.