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Report writing, like so many things in life, requires a documented process to ensure a repeatable standard is met by your organization You want your investigative reports to be accurate, written in a timely manner, and understandable to your audience They must meet the golden standard established by your organization Your computer forensic reports should achieve the following goals: M I I I I I I L Accurately describe the details of an incident Be understandable to decision-makers Be able to withstand a barrage of legal scrutiny Be unambiguous and not open to misinterpretation Be easily referenced (using paragraph numbers for the report and Bates numbers for attached documents) Contain all information required to explain your conclusions Offer valid conclusions, opinions, or recommendations when needed Be created in a timely manner
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Clients often expect a lot of information in a very short period of time We have had clients who still believe Will Smith hacked the mother ship in the movie Independence Day These clients often have unrealistic expectations of what computer forensic examination can accomplish and the amount of time it takes to perform the analysis, and then document the methodology and findings in a report We have had law firms expect an expert report the day after we received a 60GB hard drive for analysis
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We have been involved in civil cases where an attorney has requested that we provide oral reports prior to creating a written report The content of our oral reports sometimes dictated whether or not we even created a written report There are primarily three reasons attorneys may request a preliminary oral report: to save money, to avoid documenting something that may harm their case, or to protect the privacy of their theories as they prepare for litigation When money is the sole motivation behind a request to avoid a written report, we always suggest putting your findings in writing, regardless of the client s pocketbook The following paragraphs address the other two concerns A client may ask you to provide an initial oral report to avoid documenting something that may ultimately harm the client s case Sometimes, an expert will not know that a certain fact could ultimately harm the case or conflict with a legal strategy or theory Therefore, it is a prudent approach for an attorney to retain you as a nontestifying expert, because you become an agent of the legal team (usually referred to as just a consultant) This means that essentially anything you do is protected under the work-product doctrine and possibly the attorney-client privilege Thus, if you are retained in the capacity of a consultant, and the lawyer does not like what you have concluded, the lawyer simply tells you not to commit it to writing and does not name you as an expert in discovery Then the attorney can look for another expert who might reach different, more favorable conclusions However, once you are named as a testifying expert and are no longer merely a consultant of the legal team, anything the lawyer says to you is discoverable This includes not just correspondence and bills, but also all oral conversations with the attorney, the client, or anything that is in any way related to or impacts your analysis and opinion When clients request oral reports to protect their hypotheses and courtroom preparation, it is possible that your forensic reports may qualify for protection under the work-product doctrine The work-product doctrine is cited most frequently as a source of immunity from discovery In order to qualify as an attorney work product, Rule 26(b)(3) of the Federal Rules of Civil Procedure specifically states that the work must be prepared in anticipation of litigation, and it extends to protect materials prepared by agents for the attorney The US Supreme Court recognized this privilege in 1947 in Hickman v Taylor, 329 US 495, 510-11 In their opinion, the Supreme Court held that: It is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel Proper preparation of a client s case demands that he assemble information, sift what he considers to be the relevant go from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference This work is reflected of course, be it in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways
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