Deleting the messages was the cheap part.

I recently wrote about sanctions: the adverse-inference instruction, the spoliation finding, the judge with disapproval written all over his face telling the jury it may assume the worst about whatever got erased. That’s a high price to pay for hitting delete. It can cost real money, and sometimes much more. Sometimes it ends up costing the whole case. But the courtroom is not necessarily where the biggest bills come due.

Regulators send a different kind of invoice, and they can send a lot of them.

The three-billion-dollar housekeeping problem

Since December 2021, the SEC and the CFTC have been running a sweep, collecting what they politely call “off-channel communications.” Translation: business talk that happened on personal phones, in texts, in WhatsApp, in Signal, in whatever app someone reached for instead of the monitored work system. The firms were supposed to keep those records. They didn’t. So, the messages weren’t there when the regulators came looking. Toll calls, indeed.

The tab so far is north of $3 billion in combined penalties across more than 100 firms. It started small and almost quaint: JPMorgan, December 2021, a $125 million (okay, not so small to you and me) WhatsApp recordkeeping fine that looked at the time like a warning shot. It wasn’t a warning shot – it was just the opening bid.

And here’s the part attorneys may want to pay close attention to. The enforcement that hit the institutions is now working its way down to individuals. FINRA has picked up the baton and started suspending individual brokers for the same conduct. It’s been often said that all business is personal, but they didn’t mean penalties. Those corporate penalties are becoming personal. That text you fired off from your own phone doesn’t just belong to your employer’s compliance headache anymore.

One fine, for the deletion alone

Now a hop across the pond to Brussels for a clean illustration of the principle in Europe.

In June 2024 the European Commission fined International Flavors & Fragrances €15.9 million for obstructing an antitrust inspection. The underlying investigation into the fragrance industry is a separate matter and is still open as of IFF’s June 2026 filing. What earned the fine was this: during a 2023 dawn raid, while the Commission was reviewing employees’ mobile phones, a senior employee intentionally deleted WhatsApp messages exchanged with a competitor, after being told the inspection was underway.

Very bad timing. Not before. He deleted them after being told an inspection was happening.

It was the first time the Commission ever fined a company for deleting messages off a phone. And note the arithmetic, because it’s the whole thesis of this piece: the fine was set as a percentage of IFF’s total worldwide turnover, then cut in half because the company owned up and helped recover the data. The fine did not depend on proving that the messages established the suspected antitrust violation. The deletion itself was the offense.

“But the messages are gone. How do they even know?”

This is the question many ask, usually with real hope in their voice. It rests on the myth that a deleted message is a deleted event.

It isn’t. A message is not a single object sitting in one place. It’s an event that leaves marks in several places at once, most of them outside the sender’s reach.

Delete a text and the content may vanish from the handset (although it might also be recoverable from there), but the carrier may still maintain transaction records for an SMS or MMS, logging that a message moved from one number to another at a particular minute. That metadata won’t tell anyone what was said but it will tell an investigator that something was said, to whom, and when, and that is often more than enough. For encrypted apps that don’t use the carrier’s messaging service, evidence may exist elsewhere: in an enabled backup, in forensic remnants that may still be recoverable from the device, or on the other person’s phone.

That last one is the reversal worth dwelling on. In my usual line of work, “we have the logs” is what my side says when we’ve preserved the evidence, and the other side is squirming. In these cases it’s turned around. The logs that sink you are the ones the other side kept. Two firms message off-channel; one of them preserved its half of the conversation, and now the gap on the second firm’s system isn’t just a gap, it’s a documented absence with a matching record on the far end. The counterparty becomes the witness. In the fragrance case, the Commission caught the deletion during the raid and the deleted data was recovered through the backup system anyway. The employee erased his handset copy. He did not erase IFF’s backup.

Existence outlives content. That’s the line to remember. Should be the title of a book.

“Isn’t a fine just the cost of doing business?”

Some firms clearly treated the recordkeeping rules that way, right up until the number had ten figures in it. But there’s a subtler trap. When the deletion itself becomes the sanctionable act, the cooperation math changes. IFF’s fine got halved for coming clean and helping recover the data. The deletion still cost them eight figures. Without that cooperation, the Commission’s starting figure was twice as high. There’s no version of that ledger where hitting delete comes out ahead.

“My client isn’t a Wall Street bank or a fragrance conglomerate.”

Well, of course it’s not. But the logic doesn’t live in securities law or EU competition rules. It lives in one idea that runs through all of it: destroying evidence after you’re on notice is a separate wrong from whatever the evidence would have shown, and it carries its own separate price. Regulators call it obstruction. Judges call it spoliation. The custodian who cleaned up their phone the weekend after the litigation hold arrived is standing in the same spot as that senior employee in the fragrance case, minus the corporate turnover to cushion the landing.

So, what to do?

Nothing exotic. The unglamorous stuff, done early.

Preserve on notice. We know this goes without saying, but given that it’s still an issue, we’re saying it anyway. In U.S. civil litigation, the duty to preserve relevant evidence generally arises when litigation is reasonably foreseeable. If auto-delete settings can affect information in scope, suspend them.

Assume the other side kept their copy. Advise clients as though the counterparty preserved everything, because sometimes they did. A story that depends on a message never having existed is a story with a short shelf life. Hope and reality can be two very different things.

Preserve the phones before they’re “cleaned up.” Deleted-but-recoverable data may have a narrow window. It can disappear when the device is wiped, traded in, or overwritten through continued use or backup rotation. Phones also perform their own internal clean-up, so time matters. Preserve the device promptly, then have counsel and a qualified examiner determine the appropriate scope and acquisition method.

Don’t confuse encrypted with gone. Signal and similar apps can make content harder to recover, but encryption does not eliminate every potential source. Depending on the app and its settings, evidence may remain in an enabled backup, a screenshot, or a recipient’s device.

Deleting evidence can create consequences on several legal tracks. A court may impose remedies for spoliation, while a regulator may pursue recordkeeping violations or obstruction. Those categories can overlap, and the available penalties depend on the facts and the forum. What they share is that the deletion can become a problem of its own, apart from whatever the missing messages might have shown.

Ever had a “the messages are gone” case turn out to be nothing of the sort once you looked at the other side’s devices? I’d like to hear how it went.

Burgess Forensics: (866) 345-3345 | steve@burgessforensics.com

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.

Sources: European Commission press release, IFF €15.9M (June 2024) · Holland & Knight, SEC/CFTC off-channel enforcement totals · Ex-Wells Fargo Broker Fined, Suspended for Off-Channel Texts to Colleague

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The Fourth Amendment walks into the fourth dimension.

The bartender says, “Why are you here?”

The Fourth Amendment replies, “You’re going to need probable cause to ask me that.”

In some of my earlier articles and videos, I referred to a “Fourth Amendment search” without stopping to explain what that phrase means. Before we travel any farther through space-time, let’s fix that.

What is a Fourth Amendment search?

The seriousness of losing your car keys notwithstanding, in constitutional law, “search” is a legal term, not simply a description of someone looking for something.

Generally speaking, government intruding upon a person’s reasonable expectation of privacy may be considered a Fourth Amendment search. So, if they’re looking for your car keys, that could be a search.

It may also occur when the government physically intrudes upon a constitutionally protected person, house, paper, or effect for the purpose of obtaining information. Those ideas come from cases such as Katz v. United States and United States v. Jones, summarized by the Library of Congress in its discussions of the reasonable-expectation-of-privacy test and current search-and-seizure doctrine.

In plain English: when the government examines somewhere or something in which you have legally recognized privacy or property interests, the Fourth Amendment may enter the conversation.

That does not automatically mean the search was unconstitutional.

The next question is whether it was reasonable. A valid warrant ordinarily requires probable cause and must particularly describe the place to be searched and the persons or things to be seized. There are also established exceptions to the warrant requirement, because constitutional law (like any self-respecting bureaucracy) apparently dislikes simple answers almost as much as time travel dislikes consistent movie plots.

It doesn’t mean police need a warrant for literally everything. The big question is whether you had a reasonable expectation of privacy in the place or thing being searched. Your bedroom: probably so. The trash you left at the curb: courts have generally said probably not so. Your phone: increasingly, yes, and increasingly protected, but the details vary by circumstance and are still evolving. In Riley v. California, the Supreme Court generally required a warrant before police search a phone seized during an arrest, subject to recognized exceptions. But I’m a forensic examiner, not a lawyer, so the details are for your counsel, not for me.

What is the Fourth Dimension?

Well, by and large, it’s considered to be Time – at least that’s what Einstein thought when he talked about spacetime, though it was his former math professor that coined the term. No, spacetime is not when you’re binge-watching old episodes of Friends. It’s the usual three dimensions plus time, all tied up with a bright blue-shifted bow.

Of course, we know how to move through the first three dimensions. But surely, you’ve seen the protestors chanting about being able to use that fourth one:

“What do we want?”

“Time Travel!”

“When do we want it?”

“It’s irrelevant!”

What does time have to do with it?

Quite a lot, actually. Time can determine when a search began, how long it lasted, whether consent was still in effect, and whether an emergency or the scope of a warrant justified what happened next.

I once worked on a case in which someone apparently wished time travel were real and tried to simulate it. He set his computer’s clock backward and then created a demand document that appeared to predate the action the demand might have prompted. The clock cooperated but the rest of the forensic evidence was less accommodating. As it turns out, changing the time displayed by a computer is easier than changing the history recorded around it.

Modern technology makes the relationship even more interesting. A single piece of location information may disclose very little. A long history of location information can reveal a detailed portrait of a person’s movements and associations. In Carpenter v. United States, the Supreme Court treated historical cell-site location records as a distinctive privacy concern.

One point in space (or space-time) is a dot: create enough dots across time and you might have an unwitting biography.

Is it “time to get rid of the stuff”?

No. Let’s stop the clock right there.

Learning that a search may occur is not a cue to delete, conceal, destroy, alter, or toss anything into a conveniently available volcano. Doing so with the intent to interfere with an investigation can create serious, separate legal problems. Federal law, for example, expressly addresses the destruction, alteration, or concealment of records intended to obstruct certain federal matters. See 18 U.S.C. § 1519.

The better uses of time are less cinematic: pause before reacting, preserve potentially relevant information, pay attention to what is being requested and what is actually authorized.

It’s a very good idea to avoid physically interfering with officials.

And, when the situation is real rather than hypothetical, consider contacting a qualified lawyer.

Calling a lawyer is not an admission of wrongdoing. It is like calling the right mechanic when the warning light comes on in your time machine (well after the warranty expired). You may hope the problem is nothing but spinning the dial back and forth between dinosaurs and intergalactic civilization, but that is not a diagnostic procedure.

What if we could go back in time?

A constitutional time traveler would need more than one stop.

First, Philadelphia in 1787, where the Constitution was drafted. Then, the First Congress in 1789, where James Madison introduced proposed amendments. Finally, 1791, when ten amendments were ratified as the Bill of Rights.

The National Archives’ history of the Bill of Rights explains that the demand for explicit protections grew out of public concern about the new federal government’s power. The Fourth Amendment’s language reflects a desire to protect people against unreasonable searches and seizures and to prevent warrants from becoming open-ended permission slips.

If we could visit the debate, we might warn the participants:

Someday, people will carry their papers, correspondence, location history, financial information, calendars, and several thousand pictures of their pets and dinners – and their pets’ dinners – inside a handheld glowing rectangle.

After a long silence, someone would probably ask, “How did they fit people inside that little box?” Someone else would ask, “What is a selfie?” Benjamin Franklin would somehow already have an account and would be publishing the source code in Poor Richard’s Almanack.

The Fourth Amendment is not only for people accused of crimes

Privacy is not evidence of guilt. People close curtains without committing felonies. They use passwords without planning conspiracies. They close bathroom doors for reasons the Framers wisely left out of the constitutional text.

The Fourth Amendment matters because ordinary people generate extraordinary amounts of personal information. It establishes boundaries between individual life and government power. Those boundaries matter whether a person is guilty, innocent, mistakenly identified, merely nearby, or simply living a life that does not need to become public property.

Still, the Fourth Amendment is not a magical force field, and unlike time travel, it does not answer every question in advance. Courts still have to apply ideas such as reasonableness, probable cause, and particularity to the facts in front of them.

The lesson from the fourth dimension

We cannot return to yesterday and make a different decision. Yet. Similarly, we still can’t fast-forward through a difficult encounter. And importantly, we cannot travel to 1791 and ask Madison whether “papers and effects” includes cloud backups.

For now, understanding what a Fourth Amendment search means is useful enough. Technology records over time, and constitutional rights are easier to use when we understand them before anurgent occasion arises.

The Constitution, although written with a quill, still has something to say about the cloud.

So … if you had a working time machine and one stop, would you watch the Constitution get drafted, warn yourself about that time you made a really bad decision, or make a suspiciously well-timed investment? I’d like to know.

This article is for general educational discussion and is not legal advice. Fourth Amendment questions are highly fact-specific, and applicable rules may vary by jurisdiction.

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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#FourthAmendment #ConstitutionalLaw #Privacy #DigitalPrivacy #CivilLiberties #LegalHumor

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“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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The post Why “He Deleted Everything” Is Usually Good News for Your Case appeared first on Burgess Forensics.

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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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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The post The Metadata Your Client Is Accidentally Sending to Opposing Counsel appeared first on Burgess Forensics.