I am a second year law student working on a law review comment about warrantless hashing. As part of my paper, I'm trying to figure out whether case logs are ever entered into evidence in court. I wasn't sure whether they were more for the examiner's personal use in keeping track of what he's done throughout the investigation, or whether they have evidentiary value. I know the "examiner's report" is most often used in court to explain what the examiner did and exhibit his findings and conclusions. But I wasn't sure if case logs are ever put into evidence.
Any help would be greatly appreciated!
These notes are generally discoverable and have to be turned over in the discovery process and the testimony of an expert witness. It all depends on the court (local, State, Fed) and how the report is being treated and if the writer of the report will be called to testify as an expert.
These notes are generally discoverable and have to be turned over in the discovery process and the testimony of an expert witness. It all depends on the court (local, State, Fed) and how the report is being treated and if the writer of the report will be called to testify as an expert.
Just to clarify, when I refer to "case logs," I'm referring to the function within, for example, FTK, which tracks everything the examiner does within the software. So the examiner really doesn't write the case log - the software just logs every action taken, whether it be a keyword search or file carving. Is that what you were referring to in your response?
Thanks for the help!
As Doug has mentioned, case logs (e.g., FTK, X Ways), can be discoverable and have been the subject of discovery at least in Federal Civil courts. Some of that MAY have changed with the most recent revisions of the Federal Rules of Civil Procedure which increase the scope of what is protected under the Work Product doctrine but until this has been adjudicated in court, I would operate on the assumption that they are discoverable.
Just to clarify, when I refer to "case logs," I'm referring to the function within, for example, FTK, which tracks everything the examiner does within the software. So the examiner really doesn't write the case log - the software just logs every action taken, whether it be a keyword search or file carving. Is that what you were referring to in your response?
Thanks for the help!
Any examiner notes whether handwritten or electronically produced shall be made available…yadda yadda…You can be asked to turn over your entire case file.
I have a full page, 1 inch margin, single spaced, 12pt description of what constitutes a "document" in a case on my desk now. Basically assume anything you memorialize in ink or binary is discoverable. Btw - this goes for voice mails as well. For those with VoIP providers that send your VMs transcribed or attached as waves and/or remotely stored you may have a duty to preserve.
There have been amendments to the FRCP as of 12/1/10 that can limit work product and expert attorney privilege but ultimately a Fed. Judge can make you turn that over.