My MCLE lecture for the University of Cebu Law School (UCLS) last May 6, 2023 was quite historic for me because it was the first "live" lecture on "Digital Forensic Fraud" by any lawyer in the Philippines, and it was certainly the longest, clocking in at three hours.
I had the opportunity to lecture on this topic for the MCLE provider ACCESS twice last year, via Zoom, but my lectures were just two hours each, so their scope had to be curtailed for me to impart the most essential tips and strategies for lawyers to recognize the indicia of fraud committed by digital forensic investigators and how they can legally respond to these instances of fraud. You can read about it here:
Philippine Lawbytes 222: The First Digital Forensic Fraud Lectures in the Philippine Mandatory Continuing Legal Education (MCLE) History
For the UCLS, I was able to discuss the essential elements in electronic discovery procedures in US civil cases which had been judicially refined thru decades of groundbreaking cases and synthesized into concise rules contained in the Federal Rules of Civil Procedure. Unfortunately, these rules had been transplanted in the Philippines by the National Privacy Commission in their own administrative procedures, even though the legal history, awareness, and the nuances in the judicial application of such rules and appreciation of the corresponding sanctions, are all lacking in the Philippine legal milieu.
Dr. Atty. Noel G. Ramiscal in his May 6, 2023 MCLE Lecture on Digital Forensic Fraud for the University of Cebu Law School MCLE Program
As an example of the complexities involved in e-discovery of digital evidence in civil cases that requires the utilization of digital forensic investigators (DFIs), I gave the recent case of Red Wolf Energy Trading LLC v. BIA Capital Mgmt., C. A. 19-10119-MLW, C. A. 19-10119-MLW (D. Mass. Sep. 8, 2022). It involved among others, the e-discovery of incriminating messages between the defendants contained in the web messaging platform "Slack", which the plaintiff's e-discovery expert found, but which the defendants did not disclose to the court. Defendants claimed to have hired a DFI who had no experience with "Slack" resulting in the alleged non-discovery of the messages, which the plaintiff's expert witness countered could have been discovered by the simple use of a free in-built e-discovery tool in "Slack", and the use of a standard e-Discovery tool which could have costed only US$10,000. In the end, the Court found for the plaintiff and rendered a judgment by default against the defendants for failure to produce all the relevant documents in the case, not once but several times, disobeying the court's original 2019 order and delaying the trial of the case for three years. This type of nuanced judgment involving the technicalities of e-discovery of electronic evidence, using the US Federal Rules of Civil Procedure, which the NPC merely copied in their administrative procedures, have no parity with any Philippine court decision that I have encountered in my law practice, research, and advocacy.
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Dr. Atty. Noel G. Ramiscal bringing his advocacy against "Digital Forensic Fraud" closer to the lawyers who attended his lecture on this matter at UCLS, May 6, 2023
I was able to also discuss the involving her conviction for the Bangladesh Bank heist that involved the Jupiter, Makati, branch of RCBC where she worked as a branch manager. The RTC Judge in January 2019 convicted her solely for being responsible for the loss by the Bangladesh Bank of US$81 million, which the court, thru the testimony of Rafael Echaluse, the Anti-Money Laundering Council (AMLC) secretariat officer who investigated the case. The court deemed that she used "her position in the bank and her banking knowledge and experience, hence accused Deguito was able to execute and implement these illegal transactions with ease". This conviction was affirmed by the Court of Appeals in February 6, 2023. But what is disturbing in this case, which I discussed with the UCLS participants is the lack of digital forensic evidence presented against her by the prosecution, or in her support, by the defense counsel. I then presented to the attendees, the complicated series of cyber events that eventually led to the cyberheist. Ms. Deguito, even with her "banking knowledge and experience" could not have pulled off, what is largely a very technical cyber operation that could only be done by a State actor, or agents of a State actor, in the span of almost a year, involving several banks in different continents. Evidence of the operation and even the identity of the perpetrators, as investigated by the US FBI, can be found online, but these were apparently not introduced in the Deguito case. It is in cases like this, where the services of a competent reliable DFI is a crucial element to support and safeguard the rights of the accused, and the right of the Philippine general public and the RCBC depositors to know the whole truth.
Another thing that my UCLS lecture afforded me is the opportunity to discuss the importance of ascertaining the complete destruction of electronic evidence which could be by lawful or unlawful means. Since destruction of e-data necessarily entails the prevention of their e-discovery, which could be abused by digital forensic investigators, I showed to the participants how to prove the destruction of e-data in a lawful manner. I also gave tips and strategies on how lawyers and law firms can protect themselves against any legal action involving the destruction of e-data that is potentially subject to e-discovery for future litigation.
Dr. Atty. Noel G. Ramiscal receiving the UCLS MCLE Certificate of Appreciation from Prof. Atty. Ella Mae Mendoza, May 6, 2023 on Digital Forensic Fraud
Of course, I discussed the many ways that digital forensic investigators can perpetrate fraud against any party in any case, and against the Courts. As I emphasized to the participants, they have to know the right educational degrees and professional certification/s of the DFIs. I brought to their attention the sole legal educational standard developed by the Commission on Higher Education (CHED) on forensic scientists that was promulgated in 2012, that can apply to DFIs. I reviewed this standard prior to its passage, as the Technical Consultant of the CHED Chair, Dr. Patricia Licuanan, during that time.
Lawyers must familiarize themselves with the content of a Digital Forensic Investigation Report (DFIR), and know what the content actually translates to in the legal context. And most importantly, they have to understand and relate to the DFIR some of the most crucial concepts I discussed which could indicate if the DFIs did a great job or committed fraud, including digital hashing, hash collisions, write blockers, chain of custody, etc. As lawyers, and agents of the court, they must know the evidentiary tricks of DFIs, which I discussed, so they can act as gatekeepers to safeguard the judicial system from the admission of fraudulent evidence concocted by DFIs who do not act in the interest of Truth and Justice, but rather collude with agents of the State, or with third parties, to falsely incriminate innocent parties, and misdirect the Courts.
University of Cebu Law MCLE Certificate of Appreciation to Dr. Atty. Ramiscal re: Digital Forensic Fraud lecture given on May 6, 2023
Despite the three-hour period given to me, I was not able to cover all the relevant areas that are subject of digital forensic fraud. The thoughtful questions and insightful comments raised by the participants during my lecture and in the written comments they provided showed their high level of engagement and desire for more knowledge and training on this matter. Some expressed their desire for an internship, a full course, or a continuing course on the subject by me. One particularly expressed the wish of being trained by me. The hankering for more information and training on this subject which is not taught in any law school or even in previous MCLE seminars given by any MCLE provider, were also reflected in the comments given by the participants in the previous two ACCESS lectures I conducted last year.
Dr. Atty. Ramiscal with his mother, Atty. Archival, Atty. Mendoza, Ms. Che, & Mr. Tambolero, at Rico's Lechon, May 6, 2023
Deepest gratitude to the UC MCLE "family" consisting of their founder, Atty. Augusto W. Go, their current Dean, Atty. Al-Shwaid Ismael, the MCLE Program Director, Atty. Josh Carol Ventura, the UC Bar Review Director, Atty. Lorenil Archival, and the MCLE support staff (Mr. Miculo Tambolero), for all their generosity in accommodating us at the very classy Waterfront Hotel, and for providing for all our needs, and to Mr. Macky, for serving as our chauffeur. We also would like to thank Attys. Archival and Mendoza, and Mr. Tambolero, who treated us to Cebuano specialties at Rico's Lechon before we left. To all the UC MCLE "live" participants who made the seminar even livelier, including Attys. Parcon, Montenegro, Cabahug, Tan, and Dano, and all the generous comments given by the participants, who inspire me to better myself as a communicator, creator, and advocate of relevant legal content and knowledge for the betterment of service to clients and the protection of the Philippine legal and judicial systems, "Salamat gyud kaayo"!
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