New technologies have meant new crimes and new civil liability. Although forgeries, forensic analysis, and criminal cover-ups are as familiar as Sherlock Holmes, electronic data has created an entirely new means of falsifying evidence and necessitated specialized investigative methods. In response, government agencies have started entirely new investigative divisions and companies involved in their own private investigations or litigation have been forced to hire special experts.
The United States District Court for the Southern District of Florida recently ruled on the reliability of a digital forensic expert's report. In Coqina Investments v. Rothstein and TD Bank, 2011 U.S. Dist. LEXIS 120267 (S.D. Fla. Oct. 18, 2011), the court was presented with allegations of electronic forgery in a civil case. As part of the litigation, the court was asked to rule on several traditional Daubert motions seeking to exclude the testimony of various traditional types of experts, rendering opinions on financial damages and accounting practices. The plaintiff also sought to exclude a new type of expert, who was offering an opinion in support of defendants' claims that certain electronic documents were e-forgeries.
Plaintiff argued that defendants' expert's opinion was unreliable and should be excluded because the expert reviewed only a sample of plaintiff's data set. After reviewing the expert's methodology and report, the Coquina Court ruled that defendants' expert had "employed a sound metadata analysis" and, therefore, would be permitted to testify about the emails that he identified as forgeries. The fact that the metadata expert did not review every document in the large dataset went to the weight of the evidence and did not undermine the reliability of the expert's conclusion that the emails that he analyzed were e-forgeries.
The Coquina Court's commonsense approach to this complex issue sets an important precedent in metadata analysis. Electronic discovery and document productions often easily encompass hundreds of thousands, if not millions, of documents. Metadata analysis is a very complex area of science, requiring experts to interpret facts for fact-finders. Requiring a metadata expert to analyze every document is not only unnecessary, it would be paralyzing. Allowing metadata experts to testify based on their analysis of a sample of documents strikes an appropriate balance in allowing the expert to assist the trier of fact while also allowing the opposing party to question the weight to be given to that expert's testimony.
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