Theoretical Fraud Case

There is a common assumption that data and communications that are not public cannot be used in civil court cases. However, courts are increasingly allowing subpoenas of private data such as text messages within civil cases. Let’s take a civil fraud case for example. The plaintiff is suing the defendant on the grounds of counterfeit fraud of health and skincare products. The plaintiff has the responsibility to prove that the defendant produced counterfeit goods, knew they were providing counterfeit goods, and intended to fool the plaintiff. The plaintiff also has to prove that they believed the counterfeit goods were real and suffered damages as a result. The plaintiff says that the harm they incurred were physical injuries from the counterfeit skincare.

In this case, the plaintiff and the defendant received eDiscovery of each other’s mobile devices. The defendant’s digital forensics team investigated the plaintiff’s phone through a logical extraction and found no evidence that the concepts that they needed to prove were located on the devices. The plaintiff’s team, realizing the limitation of the extraction methods, requested a different level of extraction. They move forward with a physical extraction and uncover deleted text messages from the defendant to the plaintiff. These messages show an argument after the goods were sold in which the defendant alludes to the knowledge of the products being counterfeit and a lack of concern for the plaintiff’s well-being because of that. 

At the same time, the defendant’s legal team is investigating the plaintiff’s phone. Their digital forensics experts discover messages that lead to questions regarding the plaintiff’s alleged harm from the counterfeit goods. 

Deleted text messages can play a key role in proving intent within civil cases. With the increase in the court’s willingness to subpoena digital evidence, utilizing digital forensics experts can be key to your case.