One of the things I enjoyed, as the 2010-2011 Chair of the American Bar Association Section of Science & Technology Law, was to talk to lawyers all over the country about how the practice of law is changing. Technology and scientific advances are changing the way lawyers practice law. eDiscovery is a prime example. When lawyers practicing in the field of civil litigation faced the phenomenon of having to gather, exchange, request, and disclose electronically stored information (ESI), the result was new rules at the federal and state level about seeking and turning over ESI. These rule changes to address eDiscovery simply reflected the reality of our clients' use of computers and the Internet to generate, manage, communicate, and archive information. In short, the civil litigation bar had to keep up with the times.
Computer forensics became the companion of eDiscovery in civil suits. How do we, as practicing lawyers, know what ESI our clients generated, stored, and communicated? If we receive media from potential or actual opponents, how do we know what ESI they generated, stored, and communicated? As practicing lawyers, we obtain the assistance of computer forensics experts to help us collect, preserve, and prepare to review and disclose ESI.
Computer forensics is so closely aligned to eDiscovery in civil cases that it seems that vendors and the media, including the legal press, sometimes ignore the use of computer forensics in other kinds of legal work. The prime example is computer forensics used in criminal litigation. Computer forensics plays a vital role in criminal litigation, just as other kinds of forensics do. Nonetheless, computer forensics goes beyond even the litigation field.
The use of computer forensics is also helpful for internal investigations, labor and employment matters, and a whole host of areas previously seen as outside the realm of "high technology" law. In addition, the use of forensics experts for computer- and Internet-related investigations will go beyond simply searching hard drives and portable media for information. Computer forensics experts will assist practicing lawyers using a variety of skills besides using software to collect ESI. Practicing lawyers will depend on forensics experts for their skills in investigations, social media, computer programming, and information security (or identifying the lack thereof).
On March 14, 2012, I will be giving a lunch presentation at the Bar Association of San Francisco on the use of computer forensics in another area not previously considered "high tech" -- the routine administration of wills and trusts. Part of my message is that in gathering information about what assets a deceased or disabled person has, it is now necessary to look at the person's computers, mobile devices, media, and online accounts. The person may have Quicken software to keep records. He or she may receive electronic statements by email. The emails may all be online in a web mail account, as opposed to residing in an email client on the computer. How can the successor trustee of a trust or an executor know for sure what accounts a client has, if he or she does not search for records and communications in computers and mobile devices? In this day and age of computers, tablets, and smart phones, no one can.
The times are changing, and the legal profession will change with it. We simply need to recognize the expanding use of services formerly thought to be limited to "high tech" matters. Computer forensics is one example of a "high tech" field broadly applicable to many legal matters, and we will see more as time goes on.
Stephen Wu
Partner, Cooke Kobrick & Wu LLP