Learning Goal: I'm working on a creative writing discussion question and need an explanation and answer to help me learn.
Erica post- Attorney-client privilege is a legal privilege that maintains that information shared between a client and their attorney remains
confidential (Cornell Law School, 2022). This privilege only exists when there is an established attorney-client relationship. Investigators are
also privy to attorney-client privilege in that every piece of evidence collected is to remain "privileged" and confidential within the confines of
the attorney-client relationship. The client can choose to waive privilege, or the court can determine that the investigation is not privileged. In
these cases, the information would not be protected.
The main objective of a digital forensic investigator hired to assist in a legal case is to uncover digital evidence that will assist the hiring party
(defense attorneys, prosecutorial offices, and law enforcement agencies) through the presentation of digital evidence either in court or in a
civil process (Karie & Karume, 2017). An investigator's job is to ensure that the work product and the communication between the
investigator and client are strictly confidential and not disclosed to anyone outside the attorney-client privileged relationship. As an
investigator, I would want the scope and the purpose of the investigation defined by the attorney and the client. K. Brown (personal
communication, October 25, 2022) advised that an engagement letter, or retainer agreement, is crucial. The engagement letter acts as an
investigation plan, per se. The letter outlines the background of the criminal charge or the civil complaint, the issues to be investigated,
critical contacts for the investigator, and to who the investigator reports. The engagement letter also lets the investigator know who they can
share information with. Next, the investigation can begin. Investigators must remain unbiased and objective throughout the investigation, no
matter what is uncovered. For example, an investigator is hired by the defense to perform a hard drive investigation on their client's
computer, who has been accused of disseminating child pornography. The investigator runs the software and discovers multiple deleted files
depicting images of child pornography. The investigator must report the findings to the client and the attorney, although the evidence
damages the case. According to Article 5, Rule 26 of the North Carolina general statute (1967) governing discovery, both parties may
request evidence and case discovery. In the example mentioned above, it would be the investigator's duty to turn over the damaging
evidence. The investigator is governed by professional and legal ethics and must report all findings. Once the investigation has ended and
all findings have been reported, the attorney-client privilege still binds the investigator. According to K. Brown (personal communication,
October 25, 2022), an investigator can be called to testify in these cases, and the investigation must be legally sound.
Disclosure is one of the main issues in attorney-client privilege cases that involves a third-party investigator. Disclosure, whether intentional
or unintentional, can waive the attorney-client privilege. An investigator must exercise caution in all communications, whether they are verbal
or electronic. According to United States v. Kovel (1961), disclosing any work product to a third party can waive attorney-client privilege if the
disclosure is not necessary for the effective consultation between the client and the attorney, and even then, the disclosure should be
approved by the attorney. Ephesians 5:15-17 (NKJV ultrathin reference bible, brown deluxe leather touch, indexed, 2017) tells us to use
caution in everything we do, take our time, and do things right. This verse applies to investigators and disclosure. Unintentional disclosure
can be just as harmful as the intentional disclosure of a case.
References:
Cornell Law School. (2022, June). Attorney-client privilege. Legal Information Institute. https://www.law.cornell.edu/wex/attorney-client_pr...
Depositions and Discovery, NC Gen Stat § 1A-1-RULE-26 (1967). https://www.ncleg.net/EnactedLegislation/Statutes/...
Karie, N. M., & Karume, S. M. (2017). DIGITAL FORENSIC READINESS IN ORGANIZATIONS: ISSUES AND CHALLENGES. The Journal
of Digital Forensics, Security and Law: JDFSL, 12(4), 43-
