Many clients involved in litigation who communicate via text messages question why their lawyers stress the importance of collecting their mobile data through forensic methods.
Common alternatives they propose include screenshots, WhatsApp exports, or utilising Desktop WhatsApp pairing. They also raise valid concerns about the privacy of personal data on their mobile devices, such as family photos.
While these solutions might appear reasonable, they often fail to adhere to Practice Directions - PD 57AD applies here - and pose significant limitations.
Key Challenges of Forensic Collection Alternatives:
- Defensibility: Without forensic tools to collect the data, proving the integrity and existence of certain documents from mobile phones becomes difficult and sometimes impossible. The absence of metadata, such as sent times, delivery reports, or read receipts will most likely lead to challenges in court.
- Data Preservation: As technology evolves rapidly, many users upgrade their mobile phones every few years. While specific chat messages can be transferred from one device to another (like WhatsApp), this is not always possible with other applications (like Telegram). Forensic tools ensure that all data available at the time of collection is preserved for future use.
- Legal Compliance: Lawyers are trained on legal standards and what qualifies as relevant, irrelevant, or privileged evidence. Allowing clients to self-select information or screenshots prevents lawyers from verifying that they have thoroughly reviewed all pertinent information and complied with legal requirements.
- Cost Efficiency: Many perceive forensic collection as an unnecessary expense for their case. However, this is a misunderstanding. Forensic tools enable solicitors to filter out irrelevant data based on objective and defensible criteria, making the remaining documents easier to review. This reduces data volumes and review time, which are the most expensive parts of the process.
In conclusion, while clients understandably seek alternatives to forensic data collection due to concerns regarding privacy or perceived costs, these methods often fall short of ensuring the integrity and compliance needed in legal proceedings. Ultimately, forensic data collection not only safeguards the validity of evidence but also enhances the overall effectiveness of legal representation, ensuring that clients' interests are effectively protected throughout the litigation process.
