Top 5 Mistakes Lawyers Make With Digital Evidence – Copyright 2026, Steve Burgess
After forty years working with attorneys on digital evidence, I’ve seen the same mistakes cost cases time and again. Here are five of the most common – and how to avoid them.
Mistake #1: Waiting Too Long to Preserve Evidence
Digital evidence disappears. Every time someone uses a device, it writes over old data. Even just turning a computer, tablet, or phone on writes new data and can irretrievably overwrite important logs and other files. Cloud accounts purge. Phones get reset. Employees leave with their devices.
In one employment case, an attorney contacted me three weeks after filing. By then, IT had wiped the defendant’s laptop and reassigned it. Emails, browsing history – all gone. The case settled for pennies.
What to do? Send a preservation letter immediately – before you file, if possible. Be specific: phones, computers, cloud accounts, backup drives. Then follow up. If they drag their feet, file for a preservation order.
Mistake #2: Letting Your Client Handle the Evidence
Your clients mean well. They forward screenshots, print text messages, save files to thumb drives. But every time they touch that evidence, they change it. Metadata gets altered. Timestamps shift. Valuable metadata disappears when a file gets saved for you as a PDF.
I worked a family law case where a mother scanned threatening texts from her ex-husband as PDFs. The texts were real, but the metadata showed they were created the day before the hearing. The judge excluded them. She lost custody. A forensic extraction would have authenticated those messages in five minutes.
Don’t let clients collect their own evidence. Bring in a forensic expert early to properly image devices with full chain of custody. It costs a fraction of what you’ll lose if evidence gets excluded.
Mistake #3: Relying on Screenshots
Screenshots are convenient and visual. But from a forensic perspective, they’re basically worthless as evidence.
A screenshot is just a picture. It doesn’t prove when something was created, who created it, or whether it’s altered. Anyone with photo editing software can fake one in seconds.
In one business fraud case, an attorney submitted Slack screenshots as his centerpiece evidence. The defense expert showed the timestamps didn’t match, the formatting was off, and the metadata was wrong. Screenshots excluded. Case collapsed. The screenshots were real – but without authentication, useless.
Get actual data from the source. Forensically image the phone, the computer, or the flash drive. Subpoena the platform. Capture the full metadata. Screenshots can illustrate a point, but they can’t prove it.
Mistake #4: Ignoring the Metadata
Metadata is the hidden information in every file – creation dates, edit times, GPS coordinates, device identifiers. It’s the DNA of digital evidence.
Many lawyers ignore it or don’t know how to read it. That’s a problem, because metadata often tells a different story than the file itself.
In one contract dispute, the plaintiff submitted a PDF agreement dated March 15. The defendant’s expert checked the metadata and found it was actually created April 3 – two weeks after the claimed signing date. It had also been edited on April 5. Case dismissed.
Always check metadata before relying on digital files. If you don’t know how to read it, hire someone who does.
Mistake #5: Calling the Expert Too Late
Most attorneys call me when they’re already in trouble – evidence deleted, authenticity challenged, judge threatening sanctions. By then, it’s often too late.
I worked with an attorney who gathered evidence for six months on his own. When he finally brought me in before trial, we discovered half the “evidence” was inadmissible. Broken chain of custody. Altered metadata. No authentication. The case settled for much less than it should have.
A forensic expert can identify what evidence exists, preserve data properly, authenticate documents for court, and testify to methodology under FRCP’s Rule 702. Early involvement doesn’t just protect your evidence – it strengthens your entire case.
The Takeaway
Treat digital evidence like physical evidence. You wouldn’t let your client collect their own blood samples. The same goes for phones, computers, emails, and cloud-based data.
Preserve early. Don’t let clients handle evidence. Get actual data, not screenshots. Check metadata. Involve an expert before trouble hits.
Your case will thank you.
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