As the use of technology becomes increasingly ubiquitous, it is likely that digital
forensic experts and their reports will become increasingly important to litigation.
¶25 Commentators have expressed the view that rather than asking whether the
expertise presented is “science” or “non-science,” courts should inquire into the methods
that the experts are using, and when considering an expert’s experience, “the existence of
data showing that engineers, or physicians, or psychologists, or forensic scientists can
measure or diagnose or predict or correct certain conditions does little if anything to
support an inference that they possess the requisite expertise for another task or condition
for which there are no data.”
43
This means that reviewers should engage in an analysis
that identifies the nature of the problem at issue and assesses whether data supports a
conclusion that “necessary expertise exists to offer a dependable opinion on that
problem.”
44
Additionally, to the extent that forensic science methods have been tested in
similar factual circumstances, and that those methods have been subjected to peer-review,
and/or have a known error rate, it is appropriate for a court take those factors into account
when such methods are presented as digital forensic expert evidence.
¶26 As digital forensic science advances, information about methodology should
become more available as common techniques mature.
45
General acceptance of a
technique may be relevant in the types of cases that arise repeatedly, such as spoliation of
evidence cases requiring file recovery or forensic comparison. Nonetheless, cases
involving the expert testimony of computer scientists are rife with unique factual
situations that may require an innovative approach by the expert. Consequently, it is
critical that the bench and the bar determine whether the facts of a case are such that a
traditional technique can be applied before determining whether a Daubert analysis
is necessary.