“It’s encrypted, so I guess we’re just out of luck.” I hear some version of that from attorneys and other clients more often than you’d think, usually said with a kind of resigned finality, as though the phone in evidence had sealed itself inside a block of concrete. Sometimes it’s true (well, not the part about the concrete). More often, it isn’t — and treating encryption as the end of the inquiry leaves evidence on the table that the other side may be perfectly happy to collect.

Here’s the thing worth understanding: encryption locks the front door. It rarely locks the windows, the copies, and the spare key under the mat.

Modern devices encrypt data at rest. When an iPhone or a current Android phone or a laptop running FileVault or BitLocker is powered off or locked, the data on it is scrambled and, without the key, is effectively unreadable. That part is real, and it’s strong – it’s real strong. But “the data on that specific device, while it is locked” is a much narrower thing than “the information you’re after,” and the gap between those two is where most access actually happens.

The passcode is the whole ballgame — and people are careless with it. Full-disk encryption is only as strong as the credential protecting it. People reuse passwords, write them on sticky notes, store them in a notes app, share them with a spouse or an assistant, or pick something guessable. When access to a device is lawfully available — through consent, a cooperating party, or a court order — the encryption stops being an obstacle the moment the passcode is in hand.

And by the way, the data usually lives in more than one place. This is the point often missed. A message exists on the sender’s phone and the recipient’s. When the message’ sender deleted it from their phone, it doesn’t do anything to the recipient’s copy of the message. Photos sync to iCloud or Google Photos. Documents sync to cloud storage. Phones back up to a computer or to the cloud, sometimes automatically, sometimes in a form far easier to access than the locked handset itself. The encrypted device in the evidence bag may be the hardest copy of the data to reach — and the least necessary, once you map where else that same information lives.

Cloud accounts are their own doorway. When the data has synced to a provider, the relevant credential may be an account password rather than a device passcode, and the legal path may be a subpoena or warrant to the provider rather than an attempt on the hardware. Different lock, different key, often a more productive one.

The law here is genuinely unsettled, and that’s your department, not mine. Whether a person can be compelled to disclose or enter a passcode touches the Fifth Amendment, and courts around the country have landed in different places on it — some applying a “foregone conclusion” rationale, others declining to. Compelled use of a fingerprint or face has its own tangled line of cases. I’m a forensic examiner, not a lawyer, and I won’t pretend the doctrine is settled when it plainly isn’t. But knowing that these avenues exist — and that they’re contested — is the difference between assuming a device is unreachable and asking the right questions about how it might lawfully be reached.

So what should you actually do? Stop treating “it’s encrypted” as the end of the road, as a verdict. Treat it as one locked door in a building with several entrances. Ask where else the data lives — the other party’s device, the cloud, a backup, a synced computer. Preserve all of it early, before someone decides to tidy up. And bring in a forensic examiner before you conclude anything is impossible, because what’s feasible depends heavily on the specific device, the operating system version, and how the data was stored — details that change constantly and that a competent examiner tracks for a living.

Encryption is a strong lock. It is not a force field. The attorneys who understand the difference get to the evidence; the ones who don’t talk themselves out of it.

Have you ever had a case when a locked or encrypted device in your case was or was not actually a dead end? I’d love to hear about it.

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You thought you sent a one-page letter. What you actually sent was a one-page letter and a small pile of paperwork the letter filled out about itself when you weren’t looking.

That paperwork is metadata — data about data. And it travels with your files whether or not you invited it along for the trip.

Metadata is the stuff a document quietly jots down while you’re jotting down words. There’s a lot of potential information there: Who created it, when, and on what computer. Who edited it, and when they last saved it. Where a photo was taken, down to the GPS coordinates. What camera, what settings, what software. None of it shows up on the page. All of it comes along, like a stowaway.

Most of the time this is harmless, but occasionally, it’s the whole story.

A photo is a very talkative little file.

Take a picture with your phone and you’ve created a small autobiography. The image, surely, but tucked inside is a section called EXIF data: the make and model of the phone, the date and time down to the second, and, if location services were on, the exact spot on Earth where you stood. Share that photo in its original form and you may be handing over your home address without meaning to.

The good news: most social platforms started stripping this out a few years ago when there was a public hue and cry about it. The bad news: “most” is not “all,” and emailing the original file, or dropping it in a shared folder, sends the whole talkative package along.

Documents keep a diary too

A Word document remembers more than the final draft. Depending on your settings, it can carry the author’s name, the company the software was registered to, how long the file was open, and sometimes, a list of former edits and tracked changes and comments you thought you’d removed. Every “on second thought, delete that paragraph” can live on in the file’s memory.

The Internet is dotted with cautionary tales of press releases and legal filings that were sent out with the edits still readable underneath. The same is true with newsworthy congressional hearings. Most of us are not popular enough to warrant interest from the government. Still, the words on the page said one thing but the metadata said “here’s what we almost admitted.” Oopsie.

So, what to do?

There’s no need to get paranoid about this. Depending on what you’re shopping for, your grocery list is not a national secret. But a few practical habits go a long way:

• Before sending anything sensitive, look under the hood. In Word on Windows, “Inspect Document” should find and remove hidden data, comments, and tracked changes. Do it on the final version, not the draft.
• Turn off location tagging for your camera if you don’t need it — or scrub EXIF data from photos before sharing the originals. By the way, if litigation is foreseen that involves these photos, don’t scrub the EXIF metadata. It will be considered spoliation of data and will go poorly for you if and when it goes to court.
• Remember that “delete” inside a file often just means “hide.” Removing a comment from view is not always the same as removing it from the file.

None of this requires becoming a hermit. It’s the digital equivalent of checking your pockets before you send the coat to the cleaners.

Metadata isn’t sinister. It’s just honest — sometimes more honest than we’d like. The trick is knowing it’s there, so you decide what to share instead of the file deciding for you.

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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The format language in a discovery request is easy to skip over. It looks like boilerplate. It reads like boilerplate. It is actually boilerplate. And so it gets waved through: “produce as PDF, that’s fine.” Maybe not so fine when that same attorney later pays me to explain why the file on my screen can’t answer the question the case now turns on.

Here’s the thing the other side already knows: whoever picks the format picks what you get to see. It’s just how the rules work. Under Federal Rule of Civil Procedure 34(b)(2)(E), the party asking for the documents gets to specify the form they arrive in. Don’t specify, and the choice falls to the producing side, with “reasonably usable” form as the only floor — and reasonably usable is a long way from native. Say nothing about format and you’ve handed them the pen.

Native files vs. PDFs sounds like an argument for the IT department, right? It isn’t. It’s one of the quietest, most consequential fights in the whole discovery process, and it’s worth having on purpose.

A PDF is a photograph of a document, not the document

A native file is the thing itself – the spreadsheet with its formulas still doing math, the email with its full routing header, the Word file that still remembers every draft, the photo that quietly wrote down where and when it was taken. I have a paragraph in my engagement letter saying so, albeit a bit more succinctly. A PDF or a TIFF is a picture of that file after someone chose the pose.

What really gets me is when evidence is produced as a printout of a PDF of a scan of a PDF created from the actual original file. Happens all the time. But it’s several steps away from what really happened and far from the metadata that tells the real story.

Such “pictures” drop exactly the parts that tend to win cases. Most of the metadata, describing fields such as who made it, when, on what device, and sometimes where tends to get lost when a PDF is generated from it. This is the difference between “he says he wrote it in March” and knowing, to the minute, that he didn’t.

A spreadsheet may show you a very precise value of 4,203,722.46 in the flattened PDF version but hides the formulae and structure that generated a possibly different number. A document that previously contained all the things people put in a document before they remembered other people would read the tracked changes, comments, hidden rows? Native format keeps them. The flattened copy forgets them, conveniently.

Hash values and container data are integrity signals that may let you and me confirm that the document produced is the same as the original are casualties of a PDF export. It snaps that verification thread and asks you to just take everybody’s word for it instead.

None of it comes back, either. You can’t un-flatten a PDF into the original any more than you can un-fry a flapjack. Once it’s produced that way, the missing data isn’t hiding from you. It’s gone.

I had a case where the “date digitized” EXIF metadata from a series of photos supported one side’s story. However, deeper in the metadata, there was satellite data that cast real doubt on the story being told. Satellites and their atomic clocks don’t lie about the time or the day.

Why the other side is so agreeable about it

Producing in PDF usually isn’t laziness. It’s control wearing the costume of laziness. A flattened production is easier to redact, easier to Bates-stamp, and, in a happy coincidence, easier to sanitize. The timestamp that wrecks the timeline, the author who wasn’t supposed to be within a mile of that memo, the formula that shows how a number really got built: all of it vanishes in the conversion, and it vanishes wearing the respectable coat of “routine document handling” rather than the orange jumpsuit of spoliation.

To be fair, imaged production isn’t always a dodge. Sometimes there are honest reasons for it — privilege review, redacting personal or protected information, or real proportionality under Rule 26(b)(1) when native would cost more than the whole dispute is worth. Those reasons are legitimate. The trick is to make the other side say so out loud, in the protocol, so that “we imaged it” has to be justified rather than simply assumed.

I should be clear that “save as PDF” is also a genuinely lousy way to strip metadata even when someone’s trying to be honest. It leaves things behind and takes things it shouldn’t. But that’s a different article. For today: the party that controls the format controls the evidence, and they know it even if your side doesn’t.

The fight is won in the ESI protocol, not in a motion six months later.

This is the part I most want attorneys to hear. By the time you’re standing in front of a judge complaining about a bad production, you’re asking to redo work the other side has every incentive to slow-walk into the next fiscal year — and you’re explaining to your client why the schedule, and the bill, went sideways. Nobody enjoys that conversation. Least of all the person who once said “PDF is fine.”

So specify the format on the front end, in writing:

• Ask for native formats, with metadata, by default for anything data-rich — spreadsheets, databases, structured exports — with load files that actually carry the field data. Boring to negotiate. Priceless to have.
• Name the metadata fields you want. Custodian, author, created and modified dates, an MD5 or SHA-1 hash, and parent/child relationships so attachments stay tied to their emails. “With metadata” is an invitation for the other side to read the phrase as generously as their conscience allows.
• Reserve the right to request native format for anything produced as an image, and say so up front — so when you invoke it, it’s a term of the deal and not an ambush they get to act wounded about.
• Bring your examiner in before the language is set, not after the production disappoints. Format specs written without technical input have a real talent for asking, very precisely, for the wrong thing.

The bottom line

This is not enhance-the-reflection-in-the-sunglasses forensics. It’s plumbing. It’s unglamorous, it’s easy to skip, and it is very often the only thing standing between evidence you can build a case on and a tidy picture of evidence you have to take on faith.

Courts increasingly expect native production where format carries meaning, and (hopefully) increasingly treat “well, we already gave you a PDF” as the weak answer it is. But you don’t drift there by luck. You get there by treating format as a substantive term of the case — argued with the same seriousness as scope and custodians, and about a thousand times more attention than it usually gets.

Have the fight early. It’s a great deal cheaper than the one you’ll have later, in front of a judge, with your client and their checkbook watching.

What’s the worst production-format surprise you’ve run into — native you wish you’d demanded, a PDF that turned out to be hiding the whole case, or something else entirely?

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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When a client or opposing party says “he deleted everything,” attorneys often hear a dead end. I hear the opposite and you probably should as well. In digital forensics, deletion is rarely the end of the story. In fact, it may be the beginning of a better one.

What most people don’t understand is that hitting delete doesn’t erase data. It tells the system that the space can be reused. Think of it less like shredding a document and more like taking the label off a file folder and telling the office it’s okay to reuse the drawer — the pages are still in there until someone actually needs the room and drops the pages in a shredder. Until something overwrites it, the underlying data often sits right where it always was. On phones, computers, and servers, deleted files, messages, and app data are frequently recoverable in whole or in part. While deleted phone data is somewhat more ephemeral and tends to become unrecoverable after a couple of months, other platforms are less so. In many cases, we have recovered them months or even years later.

Still, recoverability is only half of it. The more valuable half is what the act of deletion reveals.

Deletion leaves its own trail. Modern devices tend to be relentless record-keepers. They document nearly everything, often including their own attempted cover-ups. When someone deletes files, wipes an app, clears a chat, or runs “cleaner” or “wiping” software, those actions frequently generate their own artifacts: timestamps, log entries, system events, and traces in backups and cloud sync. In practice, you may be able to prove not just what existed, but when it was removed, and sometimes that a wiping tool was run at 2 a.m. the night before a device was handed over. We had a case where the inspection got stalled for a couple of days to give time for the IT guy to scrub away. However, the file-destroying tool kept a record of every single file it destroyed over the previous very busy nights.

Nothing says “nothing to hide” quite like a freshly installed disk-scrubbing utility. That timeline can be more persuasive to a fact-finder than the deleted content ever would have been.

Intent is the story. A single deleted photo is a fact. A coordinated wipe — messages cleared, a drive reformatted, cloud backups switched off, all clustered around a key date — is a narrative unto itself. Courts have well-developed doctrine here. Spoliation of evidence can support sanctions and, in many jurisdictions, the dreaded adverse-inference instruction: the jury may be told they can assume the destroyed evidence would have hurt the party who destroyed it. The person trying to make the problem disappear might just be manufacturing a bigger one, wrapped up with a bow on top.

The copies that survive. Data rarely lives in one place. A message deleted on a phone may survive in a backup, on the other party’s device, in a cloud account, or on a synced laptop nobody remembered was still logged in. Deleting the local copy does nothing to the dozen copies elsewhere. The modern device can be quite the bothersome gossip –  it tells your secrets to every other device it meets. Part of a competent forensic examination is simply knowing where those copies tend to hide.

Besides the potentially recoverable file being looked for, many programs, especially Microsoft Office, make invisible copies every time a file is open. Invisible to the user, that is – not to the examiner.

So, when the other side deletes everything, they may accomplish three things that help you: they leave recoverable data behind, they create adocumented record of the destruction, and they hand you a consciousness-of-guilt argument you didn’t have before. That’s a rough return on investment for a night or two filled with buckets of coffee and frantic clicking.

A few practical notes for counsel. Move fast. Recoverability drops as devices keep running and space gets overwritten, so preservation letters and litigation holds matter enormously.

Preserve the device itself, not just exports; a proper forensic image captures far more than a manual copy. And loop in an examiner early, before well-meaning IT staff or clients “poke around just to check” and overwrite the very evidence you’re trying to save. Curiosity has damaged more cases than it has solved.

“He deleted everything” isn’t the moment your case falls apart. More often, it’s the moment it gets interesting.

A question for the litigators: what’s a situation you’ve had where deleted data actually strengthened your side of the case? I’d be curious to hear how it played out. The best forensic stories usually start with someone who was very sure they’d covered their tracks.

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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Your client didn’t leak anything on purpose. That’s usually how it goes. The confidential settlement number, the internal complaint about a coworker, the photo that was supposed to prove they were out of town — all of it can arrive at opposing counsel’s desk wrapped in a bow, because nobody thought to ask what was riding along with the file.

Metadata is the paperwork a document fills out about itself. Every photo carries a record of when and where it was taken, and often what device took it.Every Word document remembers who created it, who edited it, and sometimes what earlier drafts looked like — because “track changes” doesn’t always mean what people think it means. Every email carries routing information that shows exactly which server it passed through and when, which is a problem if someone’s story about when they “first learned” something doesn’t match the timestamps.

I’ve spent more hours than I’d like counting looking at metadata that a client’s own attorney didn’t know was there. A “final” contract whose revision history documented every negotiating position the client took before landing on the last one. A deposition exhibit — a screenshot, no less — whose EXIF data placed the photo three weeks earlier and 200 miles away from where the witness swore it was taken.

None of this requires opposing counsel to be Sam Spade. It requires them to right-click and select “Properties,” or open the file in a tool built for exactly this purpose. Metadata review is the price of admission in any competent discovery practice now, and if your side isn’t doing it, you can safely assume the other side is.

The fix isn’t complicated, but it does require actually doing it before production, not after a client calls you in a panic. Native files should be scrubbed of unnecessary metadata before they go out the door, using proper redaction and metadata-removal tools — not just “save as PDF” and hope for the best, because that conversion process is notoriously bad at actually stripping what needs stripping. Track changes and comments need to be resolved and cleared, not just hidden from the default view. Photos being produced as exhibits should have their embedded location and device data reviewed before anyone decides whether that data helps or hurts the case — because sometimes it helps. You don’t want to accidentally destroy evidence (or let your client do it accidentally on purpose) when you’re just trying to be tidy. Frankly, destroying evidence when litigation is anticipated is a very large no-no at which a judge may frown deeply – sometimes with sanctions.

The flip side of all this, of course, is that the same sloppiness that burns your client can work in your favor against the other side. A produced document with intact metadata is a gift. It tells you who really wrote it, when, and whether the “contemporaneous” memo was actually drafted three days after the fact. I’ve had more than one case where a “Created” timestamp that didn’t match anyone’s testimony blew the case open.

The broader point is that a document isn’t just what you can see on the screen. It’s a small forensic record of its own life, and that record travels with it whether anyone remembers to look or not. Attorneys who treat metadata review as a routine part of both production and receipt catch things that attorneys who don’t simply never see.

What’s the closest call you’ve had — metadata that almost went out the door, or metadata you caught on the other side that changed the case?

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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