A fitness tracker once told me the exact moment its wearer stopped moving. Not slowed down. Stopped. The device wasn’t built to establish a time of death. It was builtto count steps and nag its owner about standing up more often. But it kept a continuous record, and that record answered a question nobody had thought to ask it.

I can’t reveal much about the case. The survivors believed the facility had let conditions get too hot for too long with too little warning. The other side believed close to the opposite: that the tracker’s own history showed the deceased knew better than to push that hard through a changing but controlled environment. Both sides were arguing about the same person’s habits, and the tracker had a record of them. Dueling cardiologists reached differing conclusions about the fitness level of the deceased.

I did not expect a line chart to affect me. Heart rate climbing to a dangerous peak, dropping to zero, then flat and never moving again. Plain as any spreadsheet. Then I imagined what that jagged line meant on the floor of the event.

That case is the whole of digital forensics in one artifact. People imagine this work is about clever adversaries planting evidence. I hear that concern regularly, and it is rarely what actually happened. The real story is duller and much harder to argue with: an ordinary device did exactly what it was built to do, and nobody remembered that what it was built to do includes keeping a record.

Your house is full of these. A video doorbell logs every motion event with a timestamp, whether or not itsaved any video.A voice assistant logs when it woke up, and sometimes what it heard in the few seconds on either side, depending on a setting its owner has never opened or knew existed. A thermostat infers occupancy from temperature adjustments and motion, which turns out to be a decent proxy for whether anyone was home. A robot vacuum holds a floor plan of every room it has ever cleaned. A car knows where it went and how fast it got there. It is getting harder and harder to have a good ol’ dumb home.

None of this was designed to be evidence, which is one reason it can become powerful evidence when properly authenticated and interpreted. There may still be questions about reliability, chain of custody, retention settings, incomplete logs, and similar issues, but the device itself has no made-up story to keep straight. It is not shaped by human memory in the way witness recollection is, though it still has to be interpreted carefully. Someone can be careful about what they say out loud and still be wearing a watch that logged a heart rate spike at the moment in question.

The law is still catching up. Carpenter v. United States narrowed the old assumption that anything you hand to a company is fair game without a warrant, at least for cell site location records. Aside from preservation duties, discovery scope, and the need to meet and confer, there is a live question whether that reasoning will narrow access to data from a thermostat, a vacuum’s floor map, or a year of refrigerator door-open events. Those boundaries are being worked out one motion and one court at a time as we speak. I would not bet on the answers looking the same in five years as they do today.

For lawyers, the lesson is simple: ask early what connected devices were present, where the data is stored, how long it is retained, and who controls it.

In the meantime, the practical reality is simpler. Your home has more employees than you think, and all of them are taking notes. None of it is malicious. Much of it may be discoverable or obtainable, if someone thinks to ask.

What smart-device data point has surprised you most, in a case or in your own house? I’d love to hear about it.

Steve Burgess is a digital forensics expert witness with more than 40 years of experience and over 20,000 devices and digital media examined. He is the principal of Burgess Forensics, founded in 1985.

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Twenty years ago, a forensic report about a hard drive was mostly an argument about whether a file existed and when it was last touched. And of course, trying to recover deleted material. Today the same report might need to address whether a video is real, whether a document was generated by a language model, whether a “deleted” text message ever really existed on the device in the first place, and especially, whether the tool used to answer any of those questions is itself reliable enough to stand behind in front of a jury.

It doesn’t come up in every case, but when it does, we’d better be ready to answer. Digital forensics has always rested on the idea that a method can be explained, tested, and challenged — that’s pretty much the whole premise behind Daubert and Frye. AI-assisted analysis complicates that premise, because a growing number of detection and authentication tools now involve models whose internal reasoning isn’t fully visible even to the people who built them. Courts are already grappling with what that means for the right to confront the basis of evidence against you, and there isn’t yet a settled answer For instance, I’ve seen questions about whether Cellebrite might mis‑label a recovered file as‘deleted’ or treat an active file as if ithad been deleted, even though the platform is historically solid and time‑tested in most other respects. Still, that’s not a hypothetical academic question; it’s a live one working its way through appellate opinions right now and it’s going to shape how expert reports get written well into the future.

What’s changing on the ground, in the meantime, is the volume and variety of source data an expert has to account for. A phone used to mean call logs and texts. Now it means cloud-synced photo libraries, health data, smart-home integration logs, location history from a dozen apps that nobody remembers granting permission to (or maybe that an update changed the permissions you did or did not grant, and metadata trails that span devices the owner may not even still possess. The expert’s job isn’t just extraction anymore — it’s building a coherent, defensible narrative out of data that lives in more places than any one device.

The next several years will bring a few concrete shifts. Although there will certainly be changing laws for changing environments, standards bodies and courts will move, slowly and , toward requiring more explicit validation testimony for AI-assisted tools. Not just “the software said so,” but documented error rates, testing methodology, and version-specific behavior, the same rigor that’s long been expected of DNA analysis and toxicology. Authentication of video and audio is going to become its own specialized sub-field, distinct from general digital forensics, the

way arson investigation split off from general fire science. And attorneys are going to need to get comfortable asking experts pointed questions about tool provenance — not because they distrust the expert, but because opposing counsel increasingly will.

None of this replaces the fundamentals. A well-documented chain of custody still matters. So does a methodology that can be explained in plain English to twelve people, a judge, and possibly an attorney who’ve never heard of a hash value, and an expert willing to say plainly what the evidence does and doesn’t show — that hasn’t changed and I don’t expect it to. What’s changing is the amount of homework required to get there, and how much of that homework now involves tools that didn’t exist five years ago.I’d like to makethis the first in a short series looking at where this field is actually headed, drawing on conversations with people building the tools and writing the standards rather than just my own two cents.

If there’s a specific angle—AI detection reliability, Confrontation Clause questions, how courts are handling deepfake authentication—you’d like covered first, I’m glad to hear it. Trial lawyers and judges who live with these issues every day are exactly who I’m hoping to hear from, so please let me know.

Steve Burgess is a digital forensics expert witness with more than 40 years of experience and over 20,000 devices and digital media examined. He is the principal of Burgess Forensics, founded in 1984.

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Copyright 2026, Steve Burgess

Smartphones are the single richest source of digital evidence in most litigation today. Text messages, call logs, photos, location history, app data, deleted files — it’s all there, sitting in a device that fits in a shirt pocket. Or in that back pocket that’s covered with bling. You’d think that because phones are so ubiquitous and so central to how people communicate, attorneys and their clients would have developed good instincts about preserving them. You would be wrong, and I say that with forty years of forensic experience and genuine affection for the legal profession.

The mistakes I see aren’t necessarily the result of bad intentions. They’re the result of people not knowing what they don’t know — which, in digi

tal forensics, turns out to be quite a lot. Here are the three that do the most damage.

Mistake One: Letting the Client Keep Using the Phone.

This one is so common that I’ve stopped being surprised by it, though I haven’t stopped being pained. The moment litigation is reasonably anticipated, a litigation hold applies to that phone. What it does not do, unfortunately, is apply itself. Unless someone explicitly tells the client to stop using the device normally, they will continue using it norma

lly — deleting old messages to free up space, backing up and syncing, downloading updates, letting apps purge their caches — all of which can overwrite the very data that might have been recoverable. The phone doesn’t know there’s a lawsuit. It’s just doing its job..

Even using the phone abnormally, that is – at all – makes potentially important changes to data that

could be responsive, and can also make otherwise recoverable data gone from the planet.

The fix is straightforward but has to happen early: tell your client, in plain language, to stop deleting anything and to bring you the phone. Not a screenshot of the phone. The phone. Best to put it into airplane mode and then turn it off immediately. We’ll get to screenshots in a moment.

Mistake Two: The Screenshot Problem.

Attorneys receive screenshots of text message conversations constantly. Clients send them because they’re easy, because they feel like evidence, and because nobody told them otherwise. The problem is that a screenshot is a photograph of information, not the information itself. It shows you what someone wants you to see, cropped to whatever boundaries they chose, dating the evidence to the very time they took the screenshot, with none of the underlying data that makes digital evidence actually useful in court.

Even worse, we regularly get PDFs of screenshots of the evidence, two steps of creation removed from the genesis of the underlying evidence.

A proper extraction of text messages from a phone includes the full conversation thread, the phone numbers associated with each contact, timestamps that can be verified against carrier records, and in many cases deleted messages that the client may not even know still exist. A screenshot gives you none of that. It also gives opposing counsel a straightforward authenticity challenge, because a screenshot can be edited in about thirty seconds by anyone with a basic photo app and an agenda. Courts are increasingly skeptical of screenshots standing alone, and rightly so. If the text messages matter to your case, get the phone examined by someone who can extract the data forensically.

Mistake Three: The Factory Reset.

This is the one that occasionally crosses the line from mistake into something courts take a very dim view of, depending on the timing and the circumstances. People factory reset their phones for all kinds of innocent reasons — selling the device, switching carriers, trying to fix a software problem, general digital housekeeping, following the instructions of a tech support rep. Even just copying the data to a new phone. Hit the wrong button during the process and Poof! All the un-transferred stuff is gone. When it happens after litigation is anticipated and a litigation hold is in effect, innocent reasons tend not to matter as much as you’d hope.

What many people don’t realize is that a factory reset, once it happens, puts you in a very difficult position legally — regardless of what may or may not remain on the device. Which, with newer devices, is usually zilch. Courts don’t look kindly on resets that occur after a litigation hold is in effect, and the explanation of ‘I didn’t know’ tends to land with a thud. The time to have this conversation with your client is before it happens, not after.”

The common thread in all three of these mistakes is timing. Digital evidence is not like paper evidence — it doesn’t just sit in a filing cabinet waiting patiently for someone to come find it. It’s dynamic, it’s fragile in ways that aren’t obvious, and the window for preserving it can close faster than anyone expects. The attorneys who understand this engage a forensic examiner early, preserve the device properly, and go into discovery knowing what the phone contains. The ones who don’t tend to find out what was on it the hard way.

If your client’s phone was examined today, would you know what’s on it — or would you find out the same time opposing counsel does?

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Steve Burgess is a digital forensics expert witness with more than 40 years of experience and over 20,000 devices and digital media examined. He is the principal of Burgess Forensics, founded in 1984.

The post The 3 Phone Mistakes That Destroy Digital Evidence Before Trial appeared first on Burgess Forensics.