Critical Incident Management

Civil law, also commonly known as tort law, is a matter identifying a wrong against an individual, corporation, or business, resulting in damage or financial losses. Civil cases deal with matters of responsibility or liability, while criminal cases deal with matters of guilt. One principal difference between criminal and civil law is the level of proof that must be achieved in proving the case and the type of sentencing. Because civil matters deal with damage and losses, the remedies are in the form of financial penalties.

In civil matters, the amount of damages might be awarded by statute, or in the form of punitive or compensatory damages. Financial compensation is given to the plaintiff. It is important to remember that civil cases deal with financial remedies awarded to the victim or plaintiff and not decisions of guilt. Civil cases won by the defendant do not usually result in any monetary compensation unless further civil action is sought to recover expenses or punish the plaintiff for filing suit.

The burden of proof required of the plaintiff is significantly less than in a criminal case being beyond a reasonable doubt. In civil matters, the plaintiff need only prove 51 percent of the case or a preponderance of the evidence. It is important to note that criminal charges may only be filed when a defendant has violated specific criminal statutes and had an intention to violate them.

In settling a civil matter, the parties agree on a monetary amount; however, if settlement cannot be reached, the matter proceeds to trial. In the civil trial, the jury decides if the defendant is liable and any amounts of financial settlement. Of course, as in the criminal matter, the losing side has the right of appeal.

Plaintiff's Burden of Proof

The burden of proof rests with the plaintiff. The plaintiff must show through a preponderance of evidence that the defendant caused her to suffer damages. The extent of these damages is measured in monetary values. Of course, the plaintiff must show actual damages and may ask the judge or jury to aware punitive damages, deterring similar acts from recurring in the future. In some cases, the amount of damages is a matter of language contained in legal statutes. The plaintiff is responsible for showing that:

• The defendant caused financial damages; if the plaintiff cannot then there is no reason for settlement and the case lacks merit.

• If applicable, there exists a standard of care or due diligence on the part of the defendant.

• If applicable, the defendant breached that due diligence.

• There exists causation between the defendant's conduct and lack of reasonable conduct caused the damages incurred by the plaintiff.

Cases where parties are in civil dispute involving a level of responsibility are measured by the "reasonable man" test. Basically, this test describes the behavior of a reasonable man and how he would act in the given set of circumstances. For example, it is not the acceptable conduct of a reasonable man to allow the public to have unfettered access to his offices.

In matters involving professional conduct, there is a still-higher test of responsibility called "due diligence." Due diligence is due professional care. Due diligence applies to the conduct of professionals in their particular area of expertise. Professional due diligence requires that the responsible person conducts sufficient investigation and responds appropriately. Plaintiffs must show to a level of preponderance (51 percent of the evidence) that the defendant, a professional, failed to take necessary precautions to inhibit or prohibit damages from occurring. It is the burden of the defendant to show that he acted prudently and within the scope of his professional due diligence.

Civil Processes

Civil suits often begin by filing complaints or petitions with the court, alleging the facts and circumstances of the plaintiff's case. In this document, the plaintiff attempts to demonstrate how she was damaged by the defendant, demanding a response from the defendant.

There is a series of filings that follow, depending on the particular civil procedure for the court. Various states have specific civil procedures that differ significantly from other states and the federal government.

Civil Discovery

The basic purpose of civil suits is the proof that the defendant wronged the plaintiff, causing damage, and plaintiff seeks financial settlement for those acts. One of the key activities of civil procedure is discovery. In most cases, discovery is where cases are made. Civil discovery is very different from criminal discovery. It is usually much more interactive between opposing sides. Discovery may include interrogatories where the opposing sides demand explanations for allegations and counter-allegations. It might include inspections; for example, the plaintiff physically inspects the workplace of the defendant. Discovery might include depositions where the opposing sides meet, examining each other and relevant witnesses, with the proceedings recorded. And, discovery might include the production of evidence, including electronic evidence. One of the favorite areas for discovery demands is the defendant's e-mail system.

E-Mail Discovery

In discovery actions, attorneys should meet and discuss the scope of anticipated e-mail discovery. Of course, the demanding side is going to request a very broad scope of e-mail discovery, with the opposition desiring a more narrow scope. Regardless, both sides need to agree on the protocol for relevant e-mail, including key words, dates, names, and sources to be searched.

The discovery of backup data tapes is usually within the scope of the discovery rules. They have the potential to deliver information that would be beyond conventional means to accurately search it and would likely result in prohibitive expenses. Before any discovery pretrial conferences, the opposing attorneys should agree on whether discovery of backed-up data is required, the extent to which it is going to be required, and who is going to pay for searching it.

Rule 34(b) of the Federal Rules of Civil Procedure allow an on-site inspection to take place. As part of this discovery process, an inspection may be necessary to observe the computer system in operation to ensure the discovery steps are being performed properly and to determine the adequacy of security and chain of custody, or to determine the source of relevant computer records. The nature of computer record storage and filing systems make it impossible to protect privileged or sensitive intellectual property.

Recently, federal courts have established a set of accepted computer inspection procedures:

• The parties agree on a neutral third-party expert who will execute the inspection as an officer of the court.

• The sides agree on the scope of the inspection, including target systems, search terms, ranges, and other defining criteria.

• The expert creates a "mirror image" (forensically sound, byte-by-byte copy of the computer data using accepted forensic procedures preserving the integrity of the original media).

• The expert searches the "mirror image" media and identifies relevant data according to previous agreements.

• The expert delivers the responsive data to the respondent's attorney.

• The respondent's attorney reviews the data for relevance and privilege.

• The respondent's attorney delivers the relevant, nonprivileged data to the requestor.

These steps will help the parties set obtainable objectives limiting discovery costs and scope while protecting privilege and privacy.

The Federal Rules of Civil Procedure, Rule 26, states that the trial court has the power to limit discovery "if the burden or expense of the proposed discovery outweighs its likely benefit." This language was added to discourage excessively costly and time-consuming activities that are disproportionate to the nature of the case. The purpose of the discovery process is the collection and examination of evidence, not financial punishment.

If discovery efforts such as on-site inspections or recovery of deleted data are not justified by showing that the efforts are likely to result in relevant and material information, it is within the trial judge's discretion to limit discovery efforts.

More on Civil Discovery

The true purpose of civil discovery is to find evidence, narrow the issues, produce testimony, and avoid surprises causing case delays and mistrials. Attorneys must be mindful that goals are set relative to the direction of discovery so they know how much is necessary. Discovery forces the opposing sides to prepare for trial or dispositive motions, and causes opponents to better understand any weaknesses in the case, thereby facilitating settlements.

Federal Laws Applicable to Computer-Related Crimes

Following is a listing of federal statutes that have application to computer-related crimes:

• 18 USC 371: Prohibits conspiracy to violate federal criminal statutes

• 18 USC 1028: Identity theft, fraud, and related activity in connection with identification documents, including biometric data, electronic identification number, address or routing code, or telecommunications identifying number or access device

• 18 USC 1029: Fraud and related activity in connection with access devices

• 18 USC 1030: Fraud and related activity in connection with unauthorized access to computers

• 18 USC 1084: Prohibits using a wire communication facility to transmit wagering information

• 18 USC 1831: Prohibits stealing trade secrets to benefit foreign powers

• 18 USC 1832: Prohibits stealing trade secrets by an individual

• 18 USC 2232: Destruction or removal of property to prevent seizure

• 18 USC 2251, 2252: Prohibits receipt or distribution by computer of material that contributes to the sexual exploitation of minors, including that which constitutes or contains child pornography

• 18 USC 2253: Provides for forfeiture of property, profits, etc., of those convicted of sections 2251 and 2252

• 18 USC 2314: Prohibits the interstate transportation of goods and travel in support of fraud in excess of $5000.

• 18 USC 2315: Prohibits the sale or receipt of stolen goods transported between states

• 18 USC 2319: Criminal infringement of a copyright

• 18 USC 2425, 2427: Prohibits the use of interstate facilities to transmit information about a minor with the intent of enticing a person to engage in sexual activity

• 18 USC 2510, et seq.: Prohibits interception and disclosure of wire, oral, or electronic communications without a warrant authorized by a federal district court judge

• 18 USC 2512: Prohibits the manufacture, distribution, possession, and advertising of wire, oral, or electronic communication-intercepting devices

• 18 USC 2518: Describes procedures for interception of wire, oral, or electronic communications

• 18 USC 2701: Prohibits unlawful access to stored communications (Electronic Communications Privacy Law)

• 18 USC 2702: Prohibits unauthorized disclosure of stored electronic communications

• 18 USC 2703: Requires a federal or state warrant for governmental access to stored electronic communications

• 18 USC 2707: Provides civil remedies for unlawful access to stored information by electronic communication service providers and subscribers

• 18 USC 2710: Provides civil remedies for the unauthorized disclosure of video sales and rental records

• 47 USC 605: Unauthorized publication or use of unlawfully intercepted communications

• 47 USC 1004: Requires telecommunications carriers to ensure systems security and integrity

• 47 USC 1007: Provides for enforcement orders when a telecommunications carrier fails to meet the government's demand for lawful interception of communications

• 50 USC 1809: Prohibits unlawful electronic surveillance and provides criminal sanctions for violations against defendants

• 50 USC 1810: Prohibits unlawful electronic surveillance and provides civil remedies for violations

^[16]The latest version of the Federal Rules of Civil Procedure is available at http://www.law.cornell.edu/rules/frcp/overview.htm.