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Using Digital Forensics to Legally Obtain Emails

Using Digital Forensics to Legally Obtain Emails

Emails are often used as forensic evidence in cases of litigation. There are many potential methods to secure emails but which ways are considered legal? Whether the case involves a civil or criminal element, you must be sure that the emails you have collected are lawful and that you have collected them in a defensible way. If they haven't been collected correctly, the judge might deny the use of them in court, which could put the favor of your court case in the hands of the other party.

Getting Emails for a Criminal Investigation

If you’re entrusting the task of email collection to another entity, you should inquire about that company’s knowledge about the requirements to secure emails legally. Secure Data Recovery only utilizes lawful collection techniques. Our technicians typically use one of three methods to obtain emails. Each of these methods is directly tied to a legal process ensuring its lawfulness.

Authorization or Consent

In some cases, the owner of the emails will voluntarily provide access to their emails. Some people assume that verbal consent or an act, like sharing a password, is all that’s needed to access and save a collection of emails. This is a dangerous assumption because a person could reverse their decision, especially if the emails you obtain could lead to negative consequences for them. Before you obtain any emails, get a signed authorization or consent form documenting your right to access. You can draft this consent yourself or find a form online. To add an additional layer of legal protection, get the email owner’s signature witnessed by a notary.

Warrant

Most people consider emails a form of private communication. As such, many people are hesitant to provide access to their emails to others. It may still be possible to secure emails from an unwilling owner but the legal process is slightly more complicated. You’ll need a legally valid reason to ask a judge for access to these emails. If granted, a warrant will be issued by a judge. The warrant will authorize that law enforcement can do a search for potential evidence. Law enforcement sometimes considers recommendations from legal teams about which forensic providers will conduct the actual search. Some law enforcement teams have their own forensic teams on staff and others contract this work out to companies like ours. When conducting a search, law enforcement will first have to find enough reason to search or seize the valuables. Otherwise, it will be an unlawful warrant.

Subpoena for Non-party Records

In the case of a criminal investigation, a subpoena will collect evidence for a case. This is seen as a formal demand for the production of documents from the non-party. The non-party is the company, individual or another party that has no direct involvement with the case, but they could possibly have access to files that could help the investigation.

Getting Emails for a Civil Litigation

The rules to acquire emails in a civil case, instead of a criminal case, are slightly different. If all parties have tried to agree on the best method of email production but haven’t found common ground, the decision on digital discovery winds up in front of a judge. The court, through court order, determines how, when, and what emails will be collected. Courts sometimes use a subpoena for non-party record, which is similar to methods utilized in criminal cases, in civil cases. The process of gathering emails for evidence can be expensive long before emails are even accessed. Parties involved in civil cases will sometimes come to an agreement or a stipulation on the collection of emails. These agreements usually involve negotiations and compromises on both sides. Yet another cost-saving strategy is a demand for production. It might not be necessary to recover all emails from an indefinite time period. Specifying the format that emails will be captured can dramatically reduce costs.

Don’t allow confusion about how to obtain emails legally be a crushing blow in your court case. Failing to follow the correct procedure can result in spoliation penalties and inadmissible evidence. A third-party digital forensic company, like Secure Data Recovery, can help you determine which method of access is most appropriate, lawful, and cost-effective. Call us at 1-800-388-1266 or submit a Help Form today to get a free quote.

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