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Legal privilege

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Fab4
 Fab4
(@fab4)
Posts: 173
Estimable Member
Topic starter
 

Just chatted with an LE buddy of mine (I'm not LE) about a case where the CPS have directed that some devices are to be examined by an "independent" non-LE analyst due to there being files that are subject to legal (solicitor-client) privilege. It's not an enquiry that I've fielded before.

Is it simply a case of providing an undertaking that I will not analyse the contents of named directories/files, which clearly will be contained in the image I acquire? I guess I could produce keyword search logs that show particular directories/files are excluded from my searches. What if there are live/deleted files that could be classified as legal privilege outside of any named directories/files?

Who establishes whether the defence are playing with a straight bat? For example, "the directory 'My Solicitor Correspondence" is entirely subject to legal privilege, but in reality it's where the suspect maintains all records relating to the alleged crime.

The enquiry started with a request for me to acquire an image minus the items of legal privilege for viewing by LE.

Thanks in anticipation.

 
Posted : 03/12/2012 9:15 pm
(@xennith)
Posts: 177
Estimable Member
 

Sometimes its easiest to get an independant barrister to sit in on the examination to ensure legal privilege isnt violated. But overall you've got the idea, the law is slanted in the favour of the defendant to a disturbing degree.

Do people abuse legal privilege? Of course they do. Some lawyers are bent as hell.

 
Posted : 03/12/2012 9:48 pm
(@twjolson)
Posts: 417
Honorable Member
 

For example, "the directory 'My Solicitor Correspondence" is entirely subject to legal privilege, but in reality it's where the suspect maintains all records relating to the alleged crime.

This isn't my area of expertise, but though I'd chime in with a question.

Says who? Folders do not have "content". Whether something is legal privilege or not should be determined by a third party (you, from the way I read it) based on the contents. If there are a thousand legal privilege files in that directory, and one image of child sexual exploitation, should it really be beyond law enforcement discovery simply because it resides near protected material?

 
Posted : 03/12/2012 10:09 pm
(@patrick4n6)
Posts: 650
Honorable Member
 

For example, "the directory 'My Solicitor Correspondence" is entirely subject to legal privilege, but in reality it's where the suspect maintains all records relating to the alleged crime.

This isn't my area of expertise, but though I'd chime in with a question.

Says who? Folders do not have "content". Whether something is legal privilege or not should be determined by a third party (you, from the way I read it) based on the contents. If there are a thousand legal privilege files in that directory, and one image of child sexual exploitation, should it really be beyond law enforcement discovery simply because it resides near protected material?

Individual docs are designated privileged. Those docs are kept together in a folder. So yes, anything in that folder is privileged (subject to limits and challenges).

Also, whilst a challenge to privilege will be determined by a third party, generally your own legal counsel is competent to designate docs for privilege prior to or during discovery (at least in the US and compatible common law systems).

I am not a lawyer, this is not legal advice.

 
Posted : 03/12/2012 11:19 pm
(@jonathan)
Posts: 878
Prominent Member
 

As already mentioned, the court usually appoints an independent lawyer to verify that material claimed by the defendant/ respondent as privileged is indeed subject to privilege. Although seemingly simple at first, the law of privilege is a rather involved area. You'd be better off asking your legal team for advice on this rather than your fellow geeks. wink

But overall you've got the idea, the law is slanted in the favour of the defendant to a disturbing degree.

Probably something to do with that pesky presumed innocence thing.

Do people abuse legal privilege? Of course they do. Some lawyers are bent as hell.

Most aren't though. Some UK prosecution are "bent as hell" too, though most aren't.

 
Posted : 03/12/2012 11:31 pm
(@trewmte)
Posts: 1877
Noble Member
 

Just chatted with an LE buddy of mine (I'm not LE) about a case where the CPS have directed that some devices are to be examined by an "independent" non-LE analyst due to there being files that are subject to legal (solicitor-client) privilege. It's not an enquiry that I've fielded before.

Is it simply a case of providing an undertaking that I will not analyse the contents of named directories/files, which clearly will be contained in the image I acquire? I guess I could produce keyword search logs that show particular directories/files are excluded from my searches. What if there are live/deleted files that could be classified as legal privilege outside of any named directories/files?

Who establishes whether the defence are playing with a straight bat? For example, "the directory 'My Solicitor Correspondence" is entirely subject to legal privilege, but in reality it's where the suspect maintains all records relating to the alleged crime.

The enquiry started with a request for me to acquire an image minus the items of legal privilege for viewing by LE.

Thanks in anticipation.

Fab4

Specify exactly the examination tool/s (and procedures) you intend to use and demonstrate in advance that the tool allows (take nothing for granted) selection and choice for extraction and havesting of particular data? Make sure all parties agree to its use.

Confirm with the pros whether a video of the examination is also required?

Make sure your contemporaneous notes are complete and without omission of any actions you conducted e.g. you don't want the video showing something you haven't written in your notes.

 
Posted : 03/12/2012 11:50 pm
(@patrick4n6)
Posts: 650
Honorable Member
 

I should probably have qualified that the legal counsel of the party claiming privilege can designate in my earlier comment.

When I was working LE in Australia, I worked a case where the computer was seized from a solicitor's office. I conducted the entire examination with that solicitor's solicitor sitting next to me, and he agreed on what wasn't privileged and could be produced, and if there was any disagreement, we could have taken it to the judge. In the end however, we didn't have any disagreements, and we produced a combination of full documents and redacted documents for trial.

 
Posted : 04/12/2012 12:02 am
PaulSanderson
(@paulsanderson)
Posts: 651
Honorable Member
 

Why would you want a video of the examination - I have done quite a few of these cases and involved in a lot more and that has never been a requirement. What you do is not at issue, its what you produce at the end of the case. It just over complicate the matter and adds nothing at the end.

Typically, or rather almost invariably when lawyers are involved, they will want to look at every document that the other side wants and the respondent will claim privilege on things that aren't and the supervising solicitor will review and make a decision.

 
Posted : 04/12/2012 1:05 am
(@trewmte)
Posts: 1877
Noble Member
 

Why would you want a video of the examination - I have done quite a few of these cases and involved in a lot more and that has never been a requirement. What you do is not at issue, its what you produce at the end of the case. It just over complicate the matter and adds nothing at the end.

A video over complicates nothing, merely adds support to the work undertaken. As I read fab4's question the work undertaken for the examination is in issue to prove no reproduction from a particular folder during the examination. Better to be safe, than overly self-confident.

What you aren't doing is illustrating for fab4 examination techniques, from the experience you say you have, that shares the benefit of your experience as to what could be done for examining this mobile/smart phone for evidence.

the respondent

I thought the prosecution in criminal proceedings were asking for the evidence?

 
Posted : 04/12/2012 1:55 am
Fab4
 Fab4
(@fab4)
Posts: 173
Estimable Member
Topic starter
 

Thanks guys. All varied and useful responses.

I conclude that several considerations currently need to be undertaken by the CPS (in agreement with the suspect's representatives);

designation of privilege docs prior to/during examination,

allocation of an independent barrister/lawyer to advise on privilege during the examination and/or to review the acquired image to advise on privilege and/or to review the examination outputs (including stated sources of evidential data) to ensure that privilege has been fully observed in the report submitted to the Court,

escalation of disagreements re privilege to the Court.

I also note the (slightly contested) discussion about videoing the examination.

Probably something to do with that pesky presumed innocence thing.

Brilliant.

Thanks again. Any further opinions extremely welcome.

 
Posted : 04/12/2012 4:54 am
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