What is a Forensic Investigation?
When you first see or hear the phrase forensic investigations, what comes to mind may be images of scientists performing blood or DNA tests using samples from the scene of a crime. However, a forensic investigation does not necessarily have to be completed in the context of a criminal investigation and may not involve blood or DNA.
A forensic investigation can be something that takes place in the context of a civil litigation matter and can be considered a part of the litigation process. This is because the investigation is often necessary when gathering the evidence required to present a successful case to a court. A forensic investigation is an investigation that involves some form of scientific method or other skill, such as accounting or valuation expertise and looks retrospectively to make a determination about something that happened in the past.
In what contexts can forensic investigations be useful?
A plaintiff in a civil litigation case is required to prove a number of elements to satisfy the court that their claim should be honoured. The following are some of the things that a forensic investigation can assist a plaintiff in a civil litigation case in proving:
- The cause of an accident, e.g. a forensic investigation involving the expertise of a traffic engineer;
- Whether a breach of contract actually occurred, e.g. a contract may have required money to be transferred to a particular company at a specified time. A forensic investigation utilising accounting expertise may be able to determine whether this in fact occurred;
- Whether a component of a product was faulty, e.g. forensic investigation involving engineering expertise; and
- Whether a product was contaminated, e.g. a forensic investigation involving a chemical analysis;
- Whether an accident was caused by negligence, e.g. a forensic investigation involving a mechanical engineer may determine that a machine fault did not cause an accident but rather was due to negligence on the part of someone responsible for operating the machine.
A forensic investigation that is being conducted in the context of civil litigation may involve the performance of some of the following tasks:
- Recovery and review of electronic data and materials, such as emails or other documents, recovered from a computer or other electronic device;
- Review of accounting records and use of accounting expertise to determine what may have happened with respect to the finances of a person or company;
- The consideration of a property from a retrospective point of view and the application of valuation expertise to determine its value at some point in the past;
- A forensic appraisal of handwriting to determine who wrote something;
- A forensic appraisal of a product, such as a toy, to determine the cause of a malfunction causing an injury;
- DNA analysis (this may be relevant in some civil litigation matters, e.g. to determine whether someone has trespassed or caused damage to property); and
- A forensic investigation of a property that was damaged by a fire may determine the cause of the fire.
Sometimes forensic investigations that utilise certain expertise are referred to according to that expertise. For example, forensic investigations involving accounting expertise is often referred to as forensic accounting. Similarly, a forensic investigation utilising valuation expertise is referred to as forensic valuation.
Forensic investigations involving computer forensics and data analysis
In the last couple of decades, one area has become more and more important in the context of civil litigation disputes is the area of computer forensics. People have become more and more reliant on computers to do their work and communicate. Computers have also become more and more powerful and now can store enormous amounts of data. Forensic investigations involving the retrieval of data from computers and other electronic devices are often now essential in many large scale civil litigation matters.
As there often is so much material that is recovered from electronic devices the data recovered is sometimes referred to as “big data”. Often specific technology programs are used to sort through this big data so that sense can be made of it. Two platforms created for this purpose and are often used in civil litigation are called Nuix and Relativity. These programs allow for the data to be sorted through quickly and efficiently and essential evidence to be quickly found.
Proactive computer forensics
Recently computer forensic experts have been assisting corporations in taking a “proactive” approach. They have been enabling corporations to take images of computers which employees or contractors have access to at certain points in time when these people become privy to certain pieces of sensitive information. If the employee or contractor then later misuses the information given to them, this image can be used in evidence to prove that the misuse has occurred. It is likely that in the future such approaches may be added to and adopted more widely. This is a proactive approach in anticipation of a forensic investigation that may need to occur in the future.
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