Tag: expert witness

Computer ForensicsDemonstrative EvidenceEvidenceSexual AbuseUncategorized

The Jeffrey Epstein Trial: Expert Witness Commentary on eDiscovery and Forensics

Last week, The Daily Beast reported the Jeffrey Epstein criminal trial will have a million pages of evidence, which will include materials seized from several devices.

A million pages of evidence makes for a great headline. It feels overwhelming! However, after reading the article from The Daily Beast, I began to wonder if a million pages of evidence is a lot or a little? How many files are stored on a standard laptop or cell phone? How will the prosecution and defense identify those files admitted into evidence? These questions, obviously, got me thinking about digital forensics and eDiscovery issues present in the Epstein sex abuse trial.

Now, if you read the blog post from last week, you’re probably wondering if I’m going to constantly write about sex abuse issues. The answer is, no. However, when these topics fill our news and I have the ability to reach out to qualified expert witnesses to provide insights on issues of public import, I’m going to do so.

As of this writing, the Florida Governor has ordered a state criminal probe into the handling of the 2008 Jeffrey Epstein investigation. This new probe was reported by The Miami Herald, yesterday afternoon. Some credit for Epstein’s current predicament, is due to the “Perversion of Justice” exposé series, from Miami Herald reporter Julie K. Brown. She detailed the 2008 sex trafficking investigation and settlement. The series is worth a read!

Now, back to the million documents of evidence. I’ve been working with digital and ediscovery experts for nearly 10 years. That said, I’m a novice on their areas of expertise. I’m able to issue spot when an attorney needs a particular type of expert. With that said, I posed some foundational questions to one of our members.

Questions & Answers for expert witness C. Matthew Curtin, CISSP:

C. Matthew Curtin, CISSP, founder and CEO of Interhack Corp., is a Certified Information Systems Security Professional. An expert in computers and information technology, Mr. Curtin and his team at Interhack help attorneys and executives use data and computer technology in high-stakes situations.

NR: According to The Daily Beast article, the Epstein trial will have more than 1 million pages of evidence, found on multiple devices. How will the prosecution and defense retrieve all of these documents and collate them into usable evidence?

CMC: One million pages of computer evidence is no big deal. Consider that in a typical computer system you’re looking at anywhere from 100,000-500,000 files, including all of the software, operating system, and user data. By the time you get through to the things being used by the prosecution and defense as evidence, the vast majority has been thrown out, but if you’ve got a phone or two, a couple of computers, and a few online services, it’s pretty easy to get into those numbers. Ultimately it depends on how they’re counting, of course: Are these bates numbered pages for presentation, or are they the raw input? If these are the results that are turned into exhibits and so on, that’s pretty big but not huge.

NR: What is the process for identifying the usable documents from those that are unrelated to a litigation?

CMC: Finding relevant documents and conducting a forensic examination are two fundamentally different processes. Finding relevant documents is typically a matter of “indexing” (reading the files for their contents) and then making “queries” of the “index” to return the documents and pages that are responsive to the search. Typically an attorney will then look at the responses and make a decision as to whether something is material. It’s basic data processing: data in, data out for a lawyer to use.

In the case of a forensic examination, the raw data will be subjected to various tests and analysis, ultimately resulting in reports that will be submitted as evidence. For a phone, a complete “extraction report” can easily produce a 5,000 page PDF document, and many get much, much larger. In any case, all of these things will wind up going into some kind of expert report that will outline opinions and findings that might be challenged and should be subjected to scrutiny. This is expert data analysis, where the data processing is performed to be consumed by an expert to form a technical opinion or finding.

NR: How much time would it take a forensics expert to comb through multiple devices to determine which documents are appropriate for discovery and evidentiary purposes?

CMC: Methodology and the size of the source matter for how long it takes. Generally speaking, I tell people to figure that to run through a forensic image of a raw computer hard drive and prepare it for human review, you’re looking at three days if you want to recover deleted files, compute the mathematical “hash” values that allow us to distinguish among files, and so on. A human will then need to go through the results and that can take anywhere from another day to another week or more, depending on what’s found, and how much work needs to be done without automated tools to manage the process. In some cases, no one cares about deleted files. In other cases, they’re critical. The only rule of thumb that applies generally is that the time it takes to do the job is between two and eight times what a lawyer thinks it should take.

NR: Is a million documents a lot of digital documents for a trial? Or is that common when dealing with digital files?

CMC: I addressed this a bit in my first answer, but one million computer files isn’t a big deal.

NR: I’m sure many of my questions are rudimentary, please feel free to provide any additional information you think the public should know about digital forensics and e-discovery in this type of matter…

CMC: Something to add: when conducting forensic examination, we often see a law-enforcement view put forth: Suspect that X happened, so go search for evidence of X. Fail to find X, and you add “tampering” to the list of charges. The reality is, though, that it isn’t sound scientific process to go in search of confirmation of what you think is already happening. Various cognitive biases interplay to create serious problems with the results extracted this way. Far better to construct tests to look for the “null hypotheses,” the things that would disprove what you think is happening. At the very least, alternate theories of the case deserve exploration and there are plenty of cases that would not take the time and money put into them if they were given greater scrutiny.

For example, if someone is suspected of having illegal pornography on a computer—that is, possessing the material, knowing the character of its content—law enforcement will typically reconstruct deleted files, look at thumbnail image databases, and loose files found in caches and elsewhere on the disk managed by the computer operating system rather than the user directly. If they find material that looks like what they thought was there, in many places a prosecutor will go forward with charges. On the other hand, what if someone did get the files and not mean to have them? What other course would there be but to delete the material? If the material has been deleted, why would it be brought up in a prosecution? There are cases where it can be relevant to a legitimate legal question but we’re only in the last few years starting to see some sophistication in consuming these results and moving forward sensibly with discretion informed by understanding.


A huge thanks to C. Matthew Curtin for taking time to provide us with these excellent answers. Please check out his company at http://web.interhack.com/.

Sexual AbuseSports Safety

Olympian Ashley Wagner’s Sexual Assault: Sports Sex Abuse Expert Witness Analysis

Yesterday, Olympian Ashley Wagner came forward with a story of her sexual assault by another figure skater, when she was only 17 years old. We reached out to a sport sexual abuse expert to gain insights.

For many, the Larry Nassar matter was an introduction to the abuse suffered by many of our greatest competitive athletes. In fact, there was a recently released congressional report about the institutional failures relating to Larry Nassar, as reported by CNN.  I, for one, was completely unaware of the potential for abuse in Olympic athletics.

Unlike the Nassar matter, where an Olympic physician was convicted of abusing athletes, Ashley Wagner reported abuse by fellow figure skater, John Coughlin. She was 17 years of age, and Mr. Coughlin (now deceased), was 22 years old at the time of the offense. Ms. Wagner provided a video recording and transcribed statement to USA Today. You can view and read her statement here.

To get a better understanding of the power dynamics and power imbalances described in Ms. Wagner’s statement, I reached out our member Katherine Starr, who is an expert witness in the areas of school and sports-related sexual abuse and harassment. Ms. Starr is also a former Olympian. Please visit her website to learn more about her services and organization Safe4Athletes. Below are my questions and her answers.

NR: Yesterday, Ashley Wagner bravely told a story about a time in which she was sexually assaulted while away at a skating camp. How common are these types of attacks in athletic environments?

KS: Unfortunately, sexual abuse is a very common occurrence in athletics, especially at the elite levels. Training camps and international competition often lack any type of formal education and prevention modalities. The risk of sexual abuse to a minor athlete increases exponentially, as they are now susceptible to sexual abuse from an adult-athlete, program staff members and coaches. There are generally no safeguards in place with minimal resources and structures for an athlete to seek the help and protection they need.

Safe4Athletes did a survey on abuse in sport with a focus on elite athletes, the questions asked were in regard to frequency and duration of abuse, all forms of abuse. We found that abuse was more likely to occur over multi-years and multi-occurrence then a single occurrence of sexual abuse. We also found that over 25 % of the participants in the survey were sexual abused, 80% that responded to having been sexually abused had competed at the international level.

We also found that sexual abuse is common across sport, the level of accomplishment is what makes the athlete vulnerable to being targeted for sexual abuse.

For additional review, a survey can be found on the Safe4Athletes website at www.safe4athletes.org/resources/survey-results.

NR: Ms. Wagner posted a video of her experience and went into great detail. In one part of the video, she discusses the “dynamics of my sport, where uncomfortable power imbalances thrive to this day.” Do sports-related sexual assaults usually involve power imbalances? And, can you expand on these imbalances for our readers?

KS: The power imbalance that Ms. Wagner has shared transpires across all sport and is a direct result of the talent of the athlete. The inherent structure of sport in itself is an imbalance of power. The imbalance of power first becomes exposed when the athlete reaches its “peak age of involvement” in the sport and the imbalance of power continues to widen as the talent reaches the top of its sport.

The power imbalance does not discriminate or change in regard to type of sport, what changes is the peak age of involvement in the sport. For example, gymnastics peak at around 13 and can compete in the Olympics as young as 13 and a typical elite career will last until 20’s. That sport is vulnerable to an abuse of power structure very young were in a sport like cycling the youngest age of Olympic competitor is 18, and last well in to their 30’s. In both instances, athletes are exposed to same abuse of power dynamic.

The imbalance of power and the dynamic develop at all talent levels and environment, often the star of the team is a target abuse. One of the other vulnerable structures is the group of athletes that are good but haven’t reached the great level, they show promise. It is the promise that is always in reach but never obtained.

NR: How can the athletic organizations improve athlete safety?

KS: First and foremost, implement effective policies, which have an external reporting structure.

Athletic departments should not do their own investigations, oversight and training modules. It appears as a conflict of interest. Seek outside help to set up structures that can actually address the power imbalance that is inherent in the system.

Most importantly, the oversight teams of these issues, needs to be educated and trained themselves to be able to understand how the voice of an athlete works.

NR: Often, it seems competitive athletic organizations fail to recognize the dangers. Or, they choose to “sweep it under the rug” when it comes to misbehavior. How should organizations respond to issues of abuse?

KS: As a result of this very issue, all our programs require an “Athlete Welfare Advocate” that is there for the athlete to seek the help they need, when they are ready. If the athlete doesn’t feel comfortable with that option, they always have the choice of speaking with Safe4Athletes directly to obtain the help and resources that they need to respond to the issue.

We customize policies for the sports environment (schools and sports programs), making sure the key ingredients are in place, to allow for an effective program to respond to the inherent abuse of power in the system.

NR: What steps can athletic organizations take to better protect athletes (many of whom are children, as Ashley Wagner was at the time of the incident)?

KS: Invest in athlete safety and protection equally as one would invest in the success of the athlete and the program. Provide the same vigor and fortitude that one puts into the athlete and the program a structure to combat these issues. One cannot have, a truly successful athlete and program without a system to address the inherent dangers that an athlete is susceptible to.

Effective programs understand the needs of “the athlete” coupled with the “level of participation” and are able to adopt and implement those nuances to respond effectively to issues and concerns.


There will be more to come on these matters. For parents with children involved in competitive athletics, please stay informed. Katherine Starr is a great resource!

 

 

Criminal LawEducationExpert Witness

Celebrity, Ivy League, College Cheating Scandal: Education Expert Witness Insights

When the news hands you a juicy story about wealthy celebrities, elite universities, college admissions, cheating, corruption, federal crimes, racketeering and conspiracy, it is really difficult to choose a title for the article.

If you are at all like me, when the news broke yesterday about wealthy celebrities bribing college officials to help get their children into elite schools, you were probably immediately angry with your parents for not doing the same! I kid. Sometimes, you just have to make light of these situations.

If you’re not up-to-date on “Operation Varsity Blues,” there is some good coverage here.

More likely, you were angry to read that one of the alleged criminals paid to have someone take an SAT for their daughter, scoring approximately 400 points higher than the child could score on their own merit.

Then you probably scrolled through the indictment to see another wealthy family is accused of bribing a crew coach (spending approximately $500,000 in bribes), to help their child be admitted as an athlete, when the child had no history of rowing competitively.

Those of us who have had to work hard to achieve our educational credentials, as a result of learning disabilities, were further angered by parents helping their children to fake disabilities to get more time on a test. This author struggled with school his whole life because of undiagnosed learning disabilities that were discovered only as an adult. I survived. I worked harder to excel. Needless to say, trying to cheat the system and fake a disability really bothered me because accommodations are meant to level the playing field, not give someone unnecessary an edge.

Most of us are aware students receive special benefits if parents or family members have previously gone to the university. We also know that the donating of a building or program often provides family members with special influence. We know this and we sort of accept it as part of society. Successful people work to help their families achieve success. Most of us have accepted this idea. However, when those efforts break the law, corrupt the education system, and displace truly qualified students, we cannot accept it and we should not accept it.

As a result of yesterday’s news, I reached out to one of our members’ to get some early insights on this matter. It is important to remember this story is still developing and what we learned yesterday, may change tomorrow or the next day.

Education Management Expert Witness Dr. Edward Dragan:

Dr. Edward Dragan, has over 40 years experience in education. He has been a special-education teacher, served as a public school principal and a superintendent, founded an alternative school with a group of disenchanted parents and students, and much more. After consulting with an attorney and testifying in court as an expert witness, Dr. Dragan decided he would best be able to help schools, children, and families by developing a practice where he could use his experience to review cases involving schools, education, and the supervision of children and provide expert opinions. Further, he has obtained a law degree with a specialty in education law and has consultation to plaintiff and defendant attorneys around the country and Canada more than 800 times on cases involving wrongful death, sexual harassment, negligent supervision, Title IX, and Section 1983 matters. Dr. Dragan has testified around the country over 125 times. You can learn more about his practice here: http://education-expert.com.

Below, you’ll find my questions and Dr. Dragan’s responses, related to the college cheating scandal.

Nick: It seems some of the allegations in the college racketeering conspiracy involve bribing entrance exam administrators. Are there procedures for qualifying entrance exam administrators?

Dr. Dragan: There are no procedures for qualifying entrance exam administrators that would guard against the bribery charges. Unfortunately, even if there were procedures or license for such administrators this type of scam can still occur. When parents, especially privileged parents, want something for their child they usually find a way – and it can involve paying a gatekeeper to a college. It takes two dishonest individuals to engage in this conspiracy and, unfortunately, the honest parents and kids lose out.

Nick: Many of us have long heard the stories of someone posing as a student for the entrance exams. I always took it as “lore.” What policies and procedures are in place to prevent test-taking fraud?

Dr. Dragan: Test-taking fraud is controlled on site by monitoring identification including pictures on license, school identification, passports, etc. Even this method can be circumvented. But careful screening can help deter fraud. Off-site or computer initiated test taking presents unique problems.

Nick: Admittedly, it is early in the publicly available information, but what policy and procedure changes would you suggest to limit test-taking fraud in the future?

Dr. Dragan: I am not an expert in electronic fraud but I imagine that for those off-site test-taking experiences software design might be helpful.

Nick: Do you expect universities to take action against coaches and other school officials who allegedly accepted bribes?

Dr. Dragan: Yes, I do expect universities to take action against coaches and other school officials who are convicted of taking bribes. They should immediately be placed on leave – no work at the university – pending investigation. If there are criminal charges made and they are convicted they should be fired. Of course, employment contracts and other elements will need to be taken into account.

Nick: Is there anything else you wish to add. Comments, concerns, or otherwise…

Dr. Dragan: The education system, and the honest pursuit of education, is a privilege enjoyed by those who are eligible to “get into” the club. When parents circumvent honest endeavors of their children they are teaching their children, by example, how to be cheaters and how to lie to get what they want. This is shameful – and especially for those who fit high-profile status.


 

It should be noted that USC has already taken action against at least one coach and one school administrator for their alleged wrongful conduct. They fired two employees yesterday, according to the LA Times, while Dr. Dragan and I were communicating about this article. As the story develops, Dr. Dragan and I may return with a Part 2 on this topic!

 

Criminal JusticeCriminal LawForensic Psychiatry

Date Rape Drugs: Expert Comments on Unreliable Tests, Harming Prosecutions

A few weeks back, BuzzFeedNews wrote an in-depth article on the unreliability of date rape drug testing and how the tests harm investigations and often prevent prosecutions.

Reading the article angered me. I became frustrated over the additional harm done to victims from a lack of national testing standards. My gut feeling was our lack of national or even statewide standards and capabilities, results in victims being re-victimized after a rape.

As with many other blog posts, it forced me to dig a little deeper and communicate with experts to see who was available to comment on this topic, to continue the discussion. Hopefully, by continuing the discussion we might shine more light on the problem and bring it one step closer to a solution.

Without reliable testing standards, how do we preserve evidence for a future prosecution? Even worse, how do we even know if the victim was drugged? If we do not set a standard, how will medical facilities know which drugs to test for during a DFSA screening? Furthermore, we need a comprehensive testing protocol to determine the standard of care when drug-assisted rape is suspected.

Normally, I provide my “two-cents” on a subject before diving into the Q&A with an expert witness. With this subject, I want to hear directly from the medical professional, and I’m sure the readers feel the same.

Forensic Psychiatry Expert Witness Sanjay Adhia

Dr. Sanjay Adhia is triple-board-certified in psychiatry, brain injury medicine and forensic psychiatry. In addition to forensic/expert witness practice, Dr. Adhia is medical director of PACE Mental Health Clinic in the Houston area.  His forensic practice focuses on the psychiatric impact of personal injury, abuse, competency, violence, and complicating mental illness. Dr. Adhia evaluates and treats psychiatric injury and disability in victims and alleged abusers. Dr. Adhia is among one of the few forensic psychiatrists who is board-certified in Brain Injury Medicine. To learn more about his forensic psychiatry practice, visit: https://www.forensicpsychiatrynow.com/.

Nick: You have written about the issue of date rape drugs in this article  (also found directly on Dr. Adhia’s website: https://www.forensicpsychiatrynow.com/date-rape-drugs) in the past. What are some drugs commonly used in date rape assaults?

Dr. Adhia: Common characteristics of many drugs used in Drug Facilitated Sexual Assaults (DFSAs) include the ability to incapacitate a victim and to cause anterograde amnesia (inability to recall the assault).

There are quite a few drugs commonly used in DFSAs. The most common and readily available drug is alcohol. Sedatives that are used by perpetrators include Ambien. Benzodiazepines, a class of medications used to treat anxiety, are often employed in DFSAs.  They include Valium, Xanax, Ativan and Rohypnol (“Roofies”). Gamma-hydroxybutyrate (GHB), a recreational drug with stimulating and sedating properties, is preferred by some perpetrators as it leaves the body quite rapidly. Ketamine (an anesthetic), Ecstasy (MDMA) and Soma (muscle relaxant) are additional examples of date rape drugs.

Nick: According to the BuzzFeedNews article, there are no national standards with regards to drug testing for date rape drugs. Do you have any recommendations for testing standards?

Dr. Adhia: I would recommend national standards. These standards could establish certification requirements for labs, lab staff and physicians who interpret the tests. For, example there are physicians who are certified to be an MRO (Medical Review Officer). They have expertise in interpreting drug tests.  The standards should include time-specific criteria for the various samples to be tested (blood, urine or hair). There should be a list of drugs that are required to be tested. Recently, I was involved in a case where the sample was destroyed after a year and GHB was not included in the testing battery. The standards should establish reliable methodology and concentration cut-offs for each tested substance. Ideally, there should not be any false-negatives or false-positives. Confounding factors could be considered in national standards.

Nick: In the past, I only ever heard it referred to as “date rape.” I understand it is now called Drug-Facilitated Sexual Assault (DFSA). Is there a national committee working to create standards for addressing DFSA cases?

Dr. Adhia:

A National Protocol for Sexual Assault Medical Forensic Examinations, 2nd Edition was published by the Department of Justice Office of Violence Against Woman. It includes a section on drug and alcohol testing. (Refer to https://www.ncjrs.gov/pdffiles1/ovw/241903.pdf page 107).

Internationally, the United Nations has published “Guidelines for the forensic analysis of drugs facilitating sexual assault and other criminal acts.”

Nick: In your forensic psychiatry practice, how do you go about treating those suffering the aftermath of DFSA? For example, victims often cannot remember the attack, so what approaches are used? With what issues are victims likely to suffer after DFSA (i.e. depression, anxiety)?

Dr. Adhia: Drug-induced amnesia is not protective of PTSD and other disorders that can occur after a DFSA. For example, some of Bill Cosby’s DFSA victims reported symptoms indicative of PTSD in their victim-impact statements. Many of his victims had life-long effects such as a reduced ability to trust men and form relationships, panic attacks, and nightmares. In DFSAs, there can be a sense of shame and self-blame. A victim could be at increased risk for substance abuse or suicide.

The treatment for PTSD and other co-occurring disorders such as depression or anxiety disorders include medications and counselling. Two medications often used in PTSD include anti-depressants and a blood pressure medication that helps reduce the nightmares. Occasionally, mood-stabilizers and anti-psychotic medications are used to target associated symptoms such as irritability.  Counselling includes individual and group psychotherapy.

Nick: Any other comments on concerns you wish to share about this crime…

Dr. Adhia: With increasing awareness, the hope is victims act promptly to preserve evidence for prosecution. Many of these drugs will exit the body in under three days or less. A victim can save his or her urine in a clean and closed container and refrigerate it promptly. A rape kit should be performed as soon as possible. The National Sexual Assault Hotline can be called at 800.656.HOPE to find a medical center for a sexual assault forensic exam with urine and blood testing for drugs.

Prompt treatment of the medical and psychiatric sequelae of DFSA is critical. A victim should be monitored and treated for any drug toxicity. There have been unfortunate cases of overdose such as with Tammy Homolka who choked on her vomit after being drugged with halothane in the course of a DFSA committed by her sister, Karla Homolka and Paul Bernardo. Emergency birth control and STD treatment is often indicated after sexual assaults.

Victims should be evaluated and treated for psychiatric disorders soon after the assault. The hotline number above can be contacted to provide referrals.


 

Again, the National Sexual Assault Hotline phone number is: 800.656.HOPE. The hotline is maintained by RAINN (Rape, Abuse & Incest National Network). They also have live chat options available on their home page: https://www.rainn.org.

 

 

Criminal JusticeJails and PrisonsLitigation

MDC Brooklyn – Prison Expert Witness on Policies During Freezing Temperatures

On Friday night, February 2, 2019, my Twitter feed exploded with news of the “power outage” at the Metropolitan Detention Center, Brooklyn. There were protesters and news stories trending about inmate health and safety.

It appears the New York Times broke the story, with the headline “No Heat for Days at a Jail in Brooklyn Where Hundreds of Inmates Are Sick and Frantic.” The frantic nature of the story was certainly increased by the protesters outside the facility advocating for inmate rights. Additionally, we were at the tail end of an incredibly cold week, referred to as the “Polar Vortex.” So, the stars had aligned for an uncomfortable and scary incident for those incarcerated. I’m certain I’d experience fear in the same circumstance.

As the New York Times reported, most of the accounts were described to them by Federal Public Defenders who represent the inmates. The inmates were limited in communication with the outside world, but were able to communicate with defense counsel in some instances. It appears heat was the primary complaint, although there were claims of limited hot water access.

In the article above there seems to be a disagreement between different stakeholders (i.e. warden, union officials, public defenders, and inmates) as to whether there was an electrical or heating problem and which one was causing the problem. For our purposes, the cause of the event does not matter. We’re interested in response.

On Monday, February 4th, a lawsuit was filed against the Federal Bureau of Prisons (FBOP) and warden, as described in this article from NBCNews, “claiming the jail kept inmates in “inhumane” and unconstitutional conditions during a dangerously cold week.”

Did you expect a lawsuit would not be filed? This is a legal blog. Of course a lawsuit was filed. Many questions arise. Was the treatment inhumane? Was it as frigid in the facility as reported? Did prison officials fail to provide humane care? It is hard to say from the publicly reported facts. We are unlikely to know, until a FBOP investigation is completed and/or discovery made public.

Nevertheless, I thought it would be helpful for us to get a better understanding of jail and prison policies and procedures from a correctional expert witness.

Jail Management Expert Witness Donald Leach:

Donald L. Leach, II, is a Jail / Corrections Management expert with over 30 years of experience. He has 20 years of consulting experience on jail management issues nationally, focusing on Risk Management for jails and jail operational methodology. Mr. Leach has served as an expert witness for 5 years, in both State and Federal court. His services are available to counsel for both Plaintiff and Defense and include case review, testimony, and consultation for jail and prison issues. You can learn more about his practice at: https://www.dlleach.me/.

As I often do, I posed several questions to Mr. Leach, and he provided answers to those questions. I have posted them verbatim below.

Nick: Are there health and safety requirements for jails/prisons when experiencing inclement weather?

Mr. Leach: The same requirements for providing humane living conditions exist regardless of weather. The Court has not specified what those conditions have to be, unless addressing an individualized case, but they have to fall within a general range of adequate conditions of confinement. This is in a normal situation. When inclement weather, such as the cold hits, then more leeway is typically given because it involves a relatively short period of time.

Nick: Do jails/prisons have policies and procedures in place for responding to a loss of electricity/heat?

Mr. Leach: More likely than not, FBOP has policies and procedures for managing the loss of electricity and heat. These are generally short-term events and are addressed as such. A close reading of the news articles coming out indicates that while conditions may be unpleasant they are far from life threatening. Depending on the facility design, adequate light may be obtained from natural sources-such as daylight. Evening hours may involve the use of lanterns placed in common areas. Again, these are typically short term events and like you address them when the lights at home go out, jails and prisons have similar policies. Additionally, I would be surprised to find that there are no emergency generators that provide general lighting and power life safety systems.

Nick: Assuming a lack of heat and electricity occurs in a jail/prison, while temperatures outside are below freezing, how should correctional personnel address the issue?

Mr. Leach: I would recommend issuing extra blankets, sheets. If additional clothing is available for issuance, provide that. If the weather has not significantly impacted commerce, then possibly an emergency purchase of thermal tops and bottoms. Extra materials would be issued to the female inmates who seem to suffer from the cold more than the males.

Nick: There were concerns about certain at-risk inmates (elderly and those with medical needs). How would you address medical concerns in a similar situation?

Mr. Leach: The administrator may have to consider temporarily transferring those inmates to neighboring facilities. We would do this on a regular and common enough basis, lasting only until the situation is rectified. Agencies will typically work together to overcome these situations. Today it’s freezing temps but tomorrow it may be plumbing!

Nick: Based only on the publicly available reporting (i.e. NYTimes & ABAJournal), what recommendations would you have for other institutions who may face similar issues in the future?

Mr. Leach: There has to be some prior planning for emergency situations such as this. A general outline of actions to take would be appropriate. The details would be decided based upon available resources and issues. For example, you can plan on transferring the elderly and medically fragile but what if the roads are closed. Keeping a stock of emergency supplies, such as extra blankets may be appropriate, or in dry areas it may be pallets of water. This is going to be geographically determined.


There it is folks! I’ll try to be ahead of the curve on the next major story to likely result in litigation.

 

 

 

 

AccountingBlockchainForensic Accounting

Cryptocurrency and Forensic Accounting of Marital Assets

What are divorcing couples to do with digital property? How does one party even locate these assets? How do you know if the other party is hiding community property in cryptocurrency? Once located, how do you divide it?

Cryptocurrency is a hot topic in the news, particularly on a slow news day. The financial media especially loves to discuss cryptocurrency at two specific times: 1) when the price of Bitcoin is skyrocketing; 2) when the price of Bitcoin is crashing.

It is certainly of greater interest to those of us who pay attention to advances in technology. I was a little late to the game as I started learning about crypto in 2015. This was earlier than many, but far later than early adopters. When I look at historical charts, it would have been nice to have invested in 2015. Alas, I did nothing of the sort. Luckily, I didn’t invest when it went crazy in 2017. When armchair pundits started saying “it’s still cheap,” I had flashbacks of the dot-com bubble when people would say things like “normal economic principles no longer apply.” Turns out, normal economic principles did apply in both scenarios.

When Bitcoin increased in value to nearly $20,000 per coin in late 2017, it became a household name. Many folks jumped in to cryptocurrency investing in the hopes of striking it rich quick. Some succeeded. Others did not. As of this writing, Bitcoin is priced at $3,415.00 according to Coinbase (chart linked so you can see how it has changed by the time you read this post).

Even off of its highest values, Bitcoin, Ethereum, Litecoin, and other cryptocurrencies still have value. They are an investment vehicle like many others, although they have experienced some tremendous volatility.

For purposes of this article, we’re looking at them as an investment to be divided upon divorce. Or, as an investment intended to hide assets from a spouse.

What is Cryptocurrency?

Don’t worry, this is not a detailed explanation of cryptocurrency. There are about a million other articles online where you can find detailed analysis of the Blockchain (on which cryptocurrency is built). In fact, one of our internet technology experts wrote an article last year that provides some interesting insights on the Blockchain.

I’ll try for a quick description before I get into the analysis needed by forensic accounting expert witnesses.

According to Investopedia, in relevant part, “A cryptocurrency is a digital or virtual currency that uses cryptography for security. Many cryptocurrencies are decentralized systems based on blockchain technology, a distributed ledger enforced by a disparate network of computers.” The ledger is kept on various different computers around the world, so that there is no centralized computing system. Also, cryptocurrency is not (at least not yet) currency issued by a central government.

As such, cryptocurrencies like Bitcoin, were used to hide money from tax authorities and participate in illegal transactions online. Especially in the early days of the currency, before it was more commonly understood.

Although hiding from the tax man and participating in illegal activity is still occurring, many users are now investing in cryptocurrency as though it is any other security. However, because it is not kept in a standard bank, but rather a digital wallet, some are using the currency to try and hide assets from their spouse (or soon-to-be ex).

What to look for as a forensic accountant?

This article from the New York State Society of Certified Public Accountants (NYSSCPA), provides some excellent advice from an accounting perspective when having to find cryptocurrency in divorce litigation.

Most importantly, the NYSSCPA provides seven questions to ask the client in the client intake interview. The questions are as follows:

1. Is the spouse very tech savvy?
2. Has the spouse ever owned cryptocurrency?
3. If so, did he or she buy and sell on an exchange, or did he or she receive cryptocurrency for goods and services?
4. If so, how did the spouse store and transact in cryptocurrency?
5. Did the spouse use cryptocurrency as part of their trade or business?
6. Where does the spouse keep their important records? Does the client have access to them?
7. What electronic devices does the spouse own?
8. Does the client still have physical access to his or her spouse’s electronic devices, such as computers, phones, and tablets?

This is incredibly important for a forensic accounting expert. You are going to want to identify all the possible records and other forms of documentation that might lead you to assets hidden in cryptocurrency.

If the spouse is tech savvy, they may do a really good job of hiding their use of cryptocurrency exchanges, software wallets, and keys to access funds.

The NYSSCPA also points out other information gathering options for the forensic accountant. You are going to need access to bank statements, tax returns, the public Blockchain, a physical inspection of the marital home, and the spouses electronic devices.

The article also points out you may have to subpoena records from cryptocurrency exchanges. Many of them are not located in the United States and may not be helpful. The exchange mentioned above with the chart, Coinbase, is the most popular and is located in the United States. If the spouse is extra savvy, they may look for exchanges located offshore.

To get further insights on this topic, I normally bring in an expert witness. Today, however, I wanted to provide the readers with some insights from a practicing family law attorney.

Erin Levine, Esq. – Family Law Attorney and Legal Technology Entrepreneur

Erin Levine is a certified family law specialist with more than 14 yeas of experience practicing family law in the East Bay. She has her own law firm, Levine Family Law Group, where she offers full-scope representation, limited-scope representation, mediation, and more.

Additionally, Erin is the founder of Hello Divorce. Hello Divorce is a service that empowers you to conveniently manage the divorce process online with easy to follow, step-by-step guidance and affordable access to our top-notch lawyers. They break down the extremely complicated California divorce process into discrete, manageable steps. Hello Divorce is helping spouses to uncouple without the outrageous costs of the classic contested divorce.

Here are my questions to Erin and her responses:

Nick: As a family law lawyer, when do you employ a forensic accountant?

Erin: We use forensic accountants in about 10% of our divorce cases. Usually we hire a forensic expert to assist with valuing an asset(s), analyzing financials that the other party has provided, determining the separate or community interest in an asset such as a house or business, sorting out complex financial information, and/or determining “income available for support.”

Nick: Have you had the issue of a spouse hiding assets in cryptocurrency?

Erin: Kind of. We’ve had a couple people fail to provide information in the initial disclosure documents evidencing cryptocurrency. We have fortunately (so far) always been able to obtain that information in discovery or a request for further disclosures. What’s made it easier on me is that my client was aware that cryptocurrency existed and in the two cases where the other spouse didn’t initially disclose – we were aware that he had received crypto as part of his compensation package so it was possible to subpoena documentation. In another case, my forensic accountant determined by looking at joint tax returns that there was a significant asset not yet disclosed. That “asset” was determined to be cryptocurrency later in the divorce.

Nick: What usually indicates, to you and your forensic accountant, to start looking for hidden cryptocurrency assets?

Erin: Well the biggest change we’ve made to our in-house process is that we’ve added cryptocurrency to our financial intake process. In other words, we explain to our clients what it is and ask questions designed to help them determine whether or not their spouse has cryptocurrency in one form or another. There are certain professions and/or lifestyles that definitely put us on high alert and require us to look a little closer at a given case to see if there might be something more there. Fortunately, we haven’t had to hard of a time yet.

Nick: What steps can you take to account for the cryptocurrency (marital property)?

Erin: Well, if you are the “out” spouse – meaning, you do not have access to all of the property, debt and/or asset information that your spouse has, you should ask for it. In California, spouse’s owe each other a fiduciary duty to disclose all assets/debts and a duty of the highest good faith and fair dealing. In other words, if one spouse is hiding an asset from the other, and it is later found, the aggrieved spouse has a strong legal claim to recover 100% (not just half) of that asset. I believe many other states have similar laws. Whether you are in a marriage or currently dissolving it, you should make sure you have a copy of all estate planning documents including the initial intake form. I find that when spouse’s are not in “war,” they are much more candid about what they own. By taking the time to look through that early intake form or your previous tax returns, you may be able to discover cryptocurrency. If it’s not immediately apparent, follow the investment/cash. As an example, maybe your spouse sold stock in 2017. Trace those funds. Where did they go? Were they used to purchase a new home? Did they disappear? If so, you have a right to request information and/or subpoena documents to determine where that cash went.


 

A special thanks to my friend, Erin Levine, for her insights on this topic. Also, I want to thank Allen Rodriguez of ONE400 who gave me the idea for this blog post. This is just an entry into the cryptocurrency issue for divorce. We may be writing about this subject in the future.

 

 

 

 

EvidenceExpert WitnessExpert Witness Testimony

Expert Witness Liability, According to the U.S. 4th Circuit Court of Appeals

Recently, we have received some questions from expert witnesses regarding potential liability for expert witness testimony. The U.S. 4th Circuit Court of Appeals decided this issue last Friday.

Last week, on October 26th, 2018, the United States, Fourth Circuit Court of Appeals ruled that the federal common law “witness litigation privilege” protects an expert witness for civil claims stemming from their testimony.

The best summary of the decision that I found comes from Pillsbury Winthrop Shaw Pittman LLP’s, Gravel2Gavel Blog. You can find the blog post here.

The matter involved a coal miner who was claiming benefits under the Black Lung Benefits Act. According to the expert witness the evidence did not support the plaintiff’s claim and the claim was denied. Thereafter, a report from the Center for Public Integrity alleged the “Johns Hopkins radiology unit and its expert witnesses were much less likely to find evidence of black lung disease than other doctors.”

The report from the Center for Public Integrity led to a lawsuit against Johns Hopkins and their doctors claiming liability for fraud, tortious interference, misrepresentation and more. The trial court dismissed the claim citing the federal common law “witness litigation privilege.” According to Gravel2Gavel, the appeals court was divided on the issue, but agreed with the trial court decision.

The Fourth Circuit stated “absolute immunity” applies to the expert witness testimony. They went further to state, “‘when a witness takes the oath, submitting his own testimony to cross-examination, the common law does not allow his participation to be deterred or undermined by subsequent collateral actions for damages.’” This is a really wordy way for the court to say an expert witness cannot later be sued for their testimony.

We also went ahead and summarized the ruling in this video:

Accident Investigation & ReconstructionEngineeringEvidence

Clemson University Floor Collapse and the Eventual Expert Witnesses

What kinds of expert witnesses can we expect to participate in future litigation related to the floor collapse at The Woodlands of Clemson apartment complex?

Early Sunday morning, at a fraternity party in Clemson, SC, a dance floor at an apartment clubhouse became the scene of a serious accident combined with multiple personal injuries. Luckily for all involved, the injuries were not life-threatening.

There were several videos of the accident. One came from Twitter user @PJG116 and another video post in a response by Twitter user @StevieW21 (still shot above also from the video), which provides us some interesting evidence to analyze in order to anticipate the potential legal issues which may necessitate expert witness opinions in future litigation. Here is the video from @PJG116

The video, according to Twitter, has been viewed more than 8 million times at the time of this writing. As an aside, the video seems to have been recorded using Snapchat and then uploaded to Twitter. It is an excellent piece of recorded evidence for our purposes.

The video provides us with a significant number of issues to consider, so I have limited my analysis. To my lawyer-friends, I’m certain you will identify issues I have missed. Please feel free to discuss those in the comments.

Premises Liability:

As this took place at an apartment complex, we are instantly interested in topics of premises liability (i.e. liability to the landowner/manager when an injury occurs on their property). In this case, we would need to determine if there was any negligence on behalf of the apartment complex.

It would be important to look at the use of this clubhouse in the past. Was it often used for college parties? Was it foreseeable a fraternity would have a dance party? Was it foreseeable a dance party would include jumping up and down? Certainly, I think the answer to all of these is yes, all were foreseeable.

There are defenses to premises liability. Common defenses include assumption of the risk, contributory negligence, and comparative negligence. Was the apartment complex informed about the number of party-goers? Did the event planner (who was likely a tenant) provide the appropriate information about the size of the party? Did the party exceed the occupancy capacity of the clubhouse? There may be negligence on behalf of the event planner (i.e. fraternity) which may have contributed to the accident. Certainly, the apartment complex will be arguing they were not at fault.

When premises liability causes of action are involved, it is not uncommon to involve a premises liability expert witness to opine on whether one or more parties met their standard of care. In this case, I anticipate it’ll be an expert with apartment property management experience.

Does the school or fraternity have any liability?

Early news reports indicated this was an off-campus event promoted by a fraternity. However, since those early reports, we have discovered the school was reviewing security camera footage. So there are some questions about whether the school is responsible for the apartment complex. Otherwise, I’m not certain how they got access to review the security footage.

Additionally, the fraternity may have rented the clubhouse for the event? Or, a fraternity member who lived at the apartment complex may have had access as a result of being a tenant. Fraternities generally have to hold liability insurance. It may turn into a dispute between the school and the fraternity as to who is responsible for the accident. Did the fraternity sign a release of liability to use the space? Did they misrepresent the intended use? Any misrepresentation may help relieve the apartment complex or school from their potential negligence.

Structural Integrity, Failure Analysis & Construction Materials:

One of the evidentiary matters likely to arise in a premises liability action is the durability, construction and intended use of the damaged part of the clubhouse.

In this Associated Press brief we are told “Clemson planning and code director Todd Steadman said there was an occupancy limit of 135 people for the upstairs portion of the clubhouse that collapsed. He says the school is reviewing security video to determine how many people were on the floor when it failed.”

There are a couple of interesting aspects to the above quote. We immediately know people are looking into the building codes and occupancy issues. If the upper portion of the clubhouse met the codes, that is helpful to the apartment complex that they met their standard of care for a safely constructed building.

In a future litigation over personal injuries stemming from this accident, I see structural engineers being brought in to analyze the construction, applicable building code sections, and cause of the failure. Knowing what caused the floor collapse and how it may have prevented will play a role in assigning liability.

Now, I’m not a structural engineer, but one thing I do know, is that vibrations can impact the stability of a platform. If you have 40 or 50 people jumping in unison, the combined impact and vibration are going to have a more significant impact than 135 people walking around.

Also, there will need to be some inspections of the collapsed material. Was there rot in the wood? Was there a termite infestation? Were there any other issues with the building materials? Did the apartment complex know, or should they have known, about any substandard materials used to construct the floor?

If the complex finds there is something off about the construction of the floor or if the materials used didn’t meet code standards, they may be able to bring the builder in as a co-defendant.

So there you have it. I see the following as potential experts in future litigation:

  • Premises liability / property management expert
  • Structural engineering or failure analysis expert
  • Construction, building codes, and construction materials expert

I know, this sounds like a lot of experts. There may be one expert capable of analyzing several of the issues outlined above.

As usual, this is a brief analysis. Premises liability being the glaring cause of action in this case. For those lawyers who will inevitably read and decide I missed an important issue… I agree. This was not intended to be a full and complete analysis of causes of action. Please comment below!

 

 

EvidenceExpert WitnessExpert Witness Testimony

Florida Supreme Court Says ‘No’ to Daubert Expert Witness Standard

Since 2013, Florida has been the center of a battle over admissibility standards for expert witness testimony.

Prior to a move by the legislature in 2013, Florida followed the Frye Standard (i.e. general acceptance test). This test is considered a more lenient in allowing for expert witness testimony.

Normally, this standard is preferred by plaintiff’s counsel and disliked by defense counsel. Much like the “general acceptance test,” my last statement is a generalization.

In 2013, the Florida Legislature passed a law changing the admissibility standard from Frye, to the federal standard commonly referred to as Daubert StandardRather than the general acceptance test, the judge as the gatekeeper, would apply a multi-pronged test to analyze the admissibility of expert evidence. Here are the prongs per Cornell Law:

  1. whether the theory or technique in question can be and has been tested;
  2. whether it has been subjected to peer review and publication;
  3. its known or potential error rate;
  4. the existence and maintenance of standards controlling its operation;
  5. whether it has attracted widespread acceptance within a relevant scientific community.

Most of our members are familiar with the Daubert Standard because it is the standard used by federal courts and more than three-quarters of US states. Naturally, my home state of California still uses Frye because we always want to do things a little differently. Well, according to the Florida Supreme Court ruling this week, Florida likes to do things differently as well.

To summarize, the Florida Supreme Court found the law implementing the Daubert Standard to be an unconstitutional infringement on the court’s authority by the legislature.

The decision was covered by CBS Miami, and the most pertinent part is as follows:

“We recognize that Frye and Daubert are competing methods for a trial judge to determine the reliability of expert testimony before allowing it to be admitted into evidence,” Justice Peggy Quince wrote in the majority decision, joined by justices Barbara Pariente, R. Fred Lewis and Jorge Labarga. “Both purport to provide a trial judge with the tools necessary to ensure that only reliable evidence is presented to the jury. Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used. With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.”

It was a 4-3 decision by the Florida Supreme Court and the Chief Justice offered an impassioned dissent. For our members practicing in Florida, the law is clear, the Supreme Court has decided Frye is the appropriate standard for Florida.

EngineeringExpert WitnessWeather

Hurricane Floodwater & Wastewater: Sanitary Engineer Expert Witness Analysis

Five days after Hurricane Florence made landfall and pounded parts of the East Coast with winds and torrential rains, many areas are still inundated with flood water.

The floods have been devastating. Not only are the waters causing extreme property damage and personal injuries (in some instances death), they are also carrying contaminants and pollutants which have severe public health concerns.

Yesterday I read about some of the pollutants entering the floodwaters. Some of the items include: dead animals (turkeys, pigs, chickens), chemicals, manure, and untreated raw sewage. In fact, Bloomberg reported farm lagoons (storing feces and urine) had given way and sewer treatment plants have been overwhelmed by the rains.

Specifically, there are a variety of issues caused by these contaminants being washed away and transported via floodwaters. Bloomberg points out some of these concerns:

“Hog waste contains E. coli and bacteria, Rumpler said. Sewage overflows, combined with high floodwaters, bring the prospect of ecological impacts including fish kills. Humans coming into contact with fecal matter risk viruses, parasitic infections and rashes.”

So, there are some things our citizen brothers and sisters should avoid in North Carolina. Try to avoid swimming and wading through floodwaters. Remember the water is NOT just rain water. It is NOT clean. Those floodwaters include wastewater. Citizens should probably continue drinking bottled water until local authorities tell them otherwise.

That is enough of my non-expert suggestions. I’ve reached out to a sanitary engineering expert witness for some insights.

Sanitary Engineering Expert Witness Bonneau Dickson

Bonneau Dickson, PE, is a Sanitary Engineer with over 35 years of experience in all aspects of studying, designing, and constructing water, wastewater, and stormwater facilities, both in the United States and abroad. Mr. Dickson has designed approximately 300 water, wastewater, and stormwater projects. Has been resident engineer or otherwise participated in the construction phase of approximately 20 water and wastewater projects. Mr. Dickson has both project management and general management experience as project manager on approximately 175 projects.  You can learn more about his practice here: bonneaudickson.com.

Nick: With the post-Hurricane Florence flooding, we are reading about heavily polluted waters (pig excrement and raw sewage). What can North Carolina authorities do to address these sewage overflows and treat the wastewater?

Mr. Dickson: Very little. The pollution has escaped and there are few or no practical means of recapturing it.

The good news is that the torrential rains are likely to flush most of the pollution out to sea where it will decompose and be diluted down to insignificant concentrations.

Nick: At least one municipal sewer authority experienced catastrophic failure. Is there anything that can be done to limit or prevent such catastrophic failures when faced with heavy rains and severe flooding?

Mr. Dickson: Proper design of wastewater treatment facilities includes protection against flooding up to some level. Often, the protection includes levees and stormwater pumping facilities to prevent the wastewater treatment facilities from flooding.

The design storm often is a 100-year storm. I have not seen an analysis of the return period for a storm like Hurricane Florence but it could be on the order of a 500-year storm or a 1,000-year storm. Some areas were reported to have received up to 40-inches of rain in a few days. Typical annual rainfall in the Carolina’s is approximately 40-inches.

Nick: What are the major public health risks associated with untreated wastewater flooding parts of North Carolina?

Mr. Dickson: Probably diarrheal diseases from drinking or coming in contact with polluted water.

Nick: What can individuals and authorities do to limit public health risks associated with wastewater?

Mr. Dickson: Get the potable water systems operating again so people have clean water to drink and bathe in.


 

Until the floodwaters recede, please be safe. Listen to local authorities and remember to help your neighbors!