It is considered a landmark decision[2] in terms of expert witness court testimony in questions of electronic evidence[3] and digital forensics.
[5] Moreover, U.S. magistrate judge Schlatter commented on the factors he considered relevant in the process of weighing the qualifications of digital forensics experts when those present contrary opinions or conclusions to the court.
Accordingly, Gates filed several actions on the grounds of unfair competition, misappropriation of trade secrets, infringement of copyright, and breach of contract.
Furthermore, (and actually decisive as regards the influence of digital forensics in trial), N. also "deleted" several word-processing files on the same computer, testifying that he did not erase any materials relevant to the pending litigation.
In retrospect, the technical method V. applied to create a copy of the hard drive of N.'s computer as well as his formal professional qualification as a digital forensics expert (particularly in comparison to the expert witness summoned by the defendant) turned out to be the crucial aspects that were decisive for the outcome of Gates claims arising from Bando's alleged violation of disclosure obligations through spoliation.
Second, the judge held that the file-by-file copying procedure applied by Gates' forensic examiner fails to fulfil the court's "best practice" requirement.
W. (the defendant's expert witness, remark of author) persuaded me, however, that V. lost, or failed to capture, important information because of an inadequate effort.
[14] In the present, compliance with this "best practise" requirement can usually be achieved by using a proprietary software for imaging, as this will admittedly preserve the evidential value of the electronic information recovered.
Moreover, they have to develop and apply an evidential reasoning that could both professionally withstand an opponent forensic expert's testimony and factually persuade the judge and/or the jury in the courtroom.
[23] To the same extent which Gates v Bando illustrates the necessity for litigation parties to carefully plan and execute a sophisticated strategy in terms of electronic evidence, however, it must be realized that it ultimately describes a recurrent practical problem: as IT and its relating tools and techniques will progress and the courts will (presumably) carry on to demand the application of the very best method available to warrant an electronic evidence's authentity, the absence of commonly court-accepted standards will emerge again and again.
One potential solution for litigators to avoid the repeated occurrence of this issue might lie in entering into pre-trial agreements with their opponent, in which they agree upon certain conditions for the mutual recognition of their electronic documents' authenticity.