Discovery of electronically stored information by private investigators

The Costa Concordia cruise ship disaster will certainly result in multiple legal cases of various types. There will be a criminal trial of the captain and possibly other parties. There will be civil suits by victims and families against the cruise line, government agencies, and possibly third party vendors such as electronics manufacturers and equipment providers. Some enterprising claimants may involve service firms who provided training, employment services or consulting to the company, through vicarious liability.

The purposes of these cases are as follows:

  • Determine if there is criminal liability for any party.
  • Determine civil violations subject to fines or penalties.
  • Establish the amounts of financial losses due to damage to assets.
  • Establish the extent of loss of life and injury to passengers and crew.
  • Identify current and future exposure due to environmental damage (toxic spills, habitat damage, fishery decline.)
  • Calculate contributory negligence of various parties to each loss and damage claim.
  • Locate assets to satisfy each claim in various international jurisdictions.
  • Quantify any insurance coverage available to claimants

The scope and volume of investigations and discovery for these cases will be immense. Although the cases will be under the jurisdiction of international venues outside of the United States, investigators can use the event as a mental exercise to consider what ESI (Electronically Stored Information) sources would be beneficial to the various parties.

Let’s take a look at a few examples and why an investigator would find these valuable.

1. Email records regarding deviation from track – current event and prior cruises: First to discover if there was a deviation from the planned cruise route.
2. Cruise line live track monitoring archive: Determine if the route taken was being actively monitored by company headquarters in real time
3. Any communications regarding “island salute”: Was this activity an officially sanctioned event, are there comms which identify knowledge of others?
4. Email communications between “Russian acquaintance” and captain: Did the woman allegedly present in the bridge have an existing or prior relationship with the captain or crew?
5. Prior reports / complaints by subordinates: Have any crew members or colleagues provide information to the cruise line which should have alerted them to prior behavior or attitudes indicating recklessness, or a tendency to not follow procedures?
6. Training records of captain compared with other captains: How was this captain trained? Was his training regimen a standard career track or were there exceptions made?
7. Written best practices of cruise line with any recent changes: Do the procedures of the cruise line have a revision history? When were changes made and by whom? Who has accessed the document?
8. Indicators for life boat deployment: Are there mechanical sensors which log the time of each lifeboat deployment?
9. Background noises from coast guard comms: Pull the audio tape files for all radio traffic prior to and during the event and investigate not only the direct communications, but also background noise to triangulate the exact position of the hailer.
10. On board video of crew movement during event: Secure all surveillance tapes and note the movement of crew and passengers. Did crew members give correct safety instructions to passengers? Were any of the passengers who are deceased or injured out of harms way at some point, but later directed to a dangerous location? This could transform the claim from accident to negligence.
11. Captains movements: Create a timeline from log files of the captains movements throughout the cruise. Was is a regular practice to leave the bridge? Did he adhere to the posted watch schedule? Were those called to relieve him qualified?
12. Accessed logs to video and black box records: Did any crew or corporate executives access the video without authorization? Are there alterations?
13. Safety drill records and logs – forensics: Retrieve log files of required safety drills to ensure that they were performed in accordance with laws and industry standards by qualified personnel.
14. Life boat training record and logs: Are all crew members current on their training and continuing certification for safety and life boat operation?
15. Employment history of captain: Compared with other captains was his promotion and service history in line with contemporaries in his field? Was there any fast track of his career?
16. Psych. evaluations for captain: Are there indications of performance risk in any mental evaluations? Were they performed in accordance with industry standards?
17. Drug / alcohol testing results for captain: is the frequency of these concurrent with all other crew?
18. Personal guests and visitors on prior excursions: Do the visitors logs from prior cruises show a pattern of guests which may have been a distraction? Does the cruise line have an official policy on this?
18. Financial records of captain: Are there any recent signs of financial distress? Are there connections to the Russian acquaintance? Are there any inappropriate activities?
19. Driving history of captain: Did the vehicle operations of the captain indicate a reckless tendency?
20. Evidence of tampering with records or logs: Compare the layout and format of other logs to ensure that the documentation being provided is accurate and genuine
21. Radar track tapes from other ships: Match the radar records for this trip and prior excursions with those from other ships to determine if any other vessels navigate the area where the hazard existed.
22. Radar logs or video logs from shore stations: There may be evidence from electronic records located in facilities on-shore either on the mainland or on Giglio Island.
23. Position and operation of rudder, stabilizers, thrusters, and ballast: Download the mechanical operational data to identify the times when the rudder angle was deflected to steer towards the hazard, and if it was ever deflected back to the port side. Verify that all other settings were correct. Even if an incorrect setting did not contribute directly to the accident, it will be evidence that a proper chain of reporting was not established or effective.
24. Number of deviations from normal operations logged by this captain vs. others: Were deviations from normal operating procedures cataloged by the cruise line? Do historical records show that this captain has a higher probability of bending rules but was overlooked by the company?
25. Any changes to company manual or operating procedures: Did the company manual change to reflect industry improvements which were not trained to crew?
26. Cell records of passengers: Map out the times which indicate cell traffic from passengers, and the location of those individuals. It can create a picture of how knowledge of the accident was spread throughout the ship by observation and official notice.
27. PA records: Overlay the time stamped public address announcements with other activities to determine when and how the ships management team responded.
28. Personnel file and any recent changes or accesses: Look for anomalies or unexplained promotions of any crew who worked with the captain or on that boat, including transfers to other vessels.
29. Documentation provided to insurance company to elicit coverage: Subpoena all insurance forms to see what representations were made to the insurer as far as safety, training, operations, and procedures. Make sure they are in agreement with true facts.
30. Property records of captain: Are there interests in real estate which connect him to parties of interest?
31. Recent travel records of captain: has he traveled to locations which are of interest to the investigation?
32. Internet history of captains computer: Does the browsing or search log show results which have to do with his actions?
33. Phone calls and time stamps of comms with HQ: Obtain precise time logs of all communications with the company executives. It appears that some of the company defense will be that they were not notified of the scope of disaster promptly by the crew. Also obtain personal phone records of those shoreside employees in contact with the captain to help piece together exactly what was said.
34. Does this ship ever use a harbor pilot? If the ship is sometimes navigated by someone with local knowledge, the procedure for determining when this happens should be scrutinized. Do any other ships use a pilot in these waters?
35. Trip files history at cruise line: Who accessed them and what info was known? Does the trip file for this cruise contain any more or less information than prior cruises? Did execs have prior knowledge of 150 meter salute or any other non standard maneuver or procedure?
36. Collect corporate records to determine if any company / business mechanism was create solely to shield liability.
Obtain operational and training records from competing cruise lines to see if Carnival adheres to industry standards.
37. Clock times: Match the clock times from all sources to be sure that they are in sync. Valuable intel can be lost if two clocks are out of sync with each other. If the clock of one camera is a few minutes ahead of another computer, it makes it difficult to interpret results when overlaying data from the two sources. Throughout the analysis process continue to verify matching times using external references.
38. Insurance references: Do any third parties have coverage which may be available for subrogation?

Regardless of the outcome, all of the interested parties will have a great deal of ESI available if they know where to look. Some cases come down to the best collection of records under the discovery order, and who can analyze the most information out of it. Cases involving cruises within international waters are governed by a particularly restrictive 1974 international treaty known as the Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea. Working cases under the Athens Convention places claimants at a disadvantage from the start, so using all available resources to their fullest potential may be more important in this case than any other. In fact, a resourceful attorney may look to ESI to get some claims outside the scope of Athens, and into a more favorable venue.

These are just a few dozen possible pursuits of an ESI professional investigator. Inside knowledge of the case and the industry will present many other opportunities. In the meantime, investigators can consider how these examples bring to mind similar opportunities in the cases they are currently working.

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