The need for neutral, expert preservation and analysis of digital evidence arises in many types of cases ranging from internal investigations and contract or employment disputes to theft of trade secrets, patent infringement, copyright infringement, and other intellectual property cases. Often, the need arises because, in the course of the examination, the examiner will have access to highly confidential information on computer media belonging to one party, who must be able to trust the examiner to keep the information confidential unless a court orders disclosure. In some situations, one party seeks to use an independent examiner to voluntarily provide extra assurance to the other party that digital evidence is being preserved, analyzed, or handled appropriately, such as when a corporate defendant seeks to expunge from its network data that an employee inappropriately introduced from a former employer. In internal investigations or securities litigation, a company may have to collect data from board members who have intermingled discoverable data on the computers or networks of another company that is their primary employer, and the company then will require the meticulous segregation of relevant information from confidential data of the other company.
Stroz Friedberg has been retained by civil parties or appointed by the court to be a neutral examiner in many such cases. This neutral role usually requires the development and implementation of detailed protocols to provide comfort and assurance to all parties that discoverable information is identified and confidential information is protected. Stroz Friedberg’s legal and technical acumen, combined with our normal methodology and technical practices, are geared to provide this assurance. We apply an independent, just-the-facts methodology and peer review our expert opinions across cases so that similar technical conclusions are reached on the same set of facts, regardless of who has hired us.
Stroz Friedberg is at the forefront of the development of protocols in neutral forensic examination cases. A clear written protocol is critical in providing the transparency, fairness, and ground rules for any neutral forensic examination. Accordingly, we can guide counsel in addressing such issues as:
- How the parties’ communications regarding the results of the neutral examination should occur
- To what data the neutral examiner should have access
- How to handle a party’s concern that the neutral examiner will disclose highly-confidential data to the adverse party
- How to test the producing party’s claims of privilege or irrelevance when the requesting party can not see the data that the producing party is urging be withheld
- Whether the requesting party should receive access to the producing party’s search terms or search methodology
Stroz Friedberg’s reputation for neutrality and fairness has been a significant factor in our selection as the neutral digital forensic consultant in high profile cases, such as the federal government investigation of Congressman William Jefferson in the Eastern District of Virginia. In the AMD v. Intel antitrust suit, the parties unanimously recommended Stroz Friedberg as the neutral Consultant to the Special Master on the highly contentious electronic discovery and digital forensic issues in that case; the recommendation was accepted by the court.