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Defense counsel hears it all the time: “The file wasn’t on my computer.”

Sometimes that statement is true in a simple, literal way: a later forensic exam doesn’t locate the exact file the affidavit describes. The harder question is legal and practical: how do cases still move forward when the file isn’t found on disk?

This post explains common, non-sensational scenarios that can produce “file not found” outcomes and gives you a defensible investigation checklist you can use to build reasonable doubt when the facts support it.

If you want background on how these cases are typically built, start with:

Why “file not found” happens (common scenarios)

Here are common ways a later exam can fail to find “the file,” even in cases where there was real P2P activity:

  • Deletion and cleanup
    • User deletion, cleanup utilities, or automatic OS cleanup.
    • Partial files deleted after errors or after “move completed downloads” settings.
  • External storage
    • Downloads saved to external drives, USB media, SD cards, or secondary internal drives.
    • Drives missing at seizure or not imaged.
  • Client cache / temp locations
    • Pieces stored in temporary paths and later moved or purged.
    • Incomplete jobs leaving fragments rather than a clean, viewable file.
  • Partial files and “resume” state
    • A client can maintain resume state and metadata even when the underlying content is incomplete or removed.
    • A “job history” can outlive the underlying bytes.
  • Cloud sync and cross-device behavior
    • Files moved off-device (cloud sync, remote drives) or synced in/out.
    • Multiple devices sharing a library path.
  • Scope limitations in the forensic exam
    • Triage-only exams, limited keyword searches, skipped partitions, or time-constrained acquisitions.
    • Missed user profiles, missed VM images, missed encrypted containers.

None of these are magic defenses. They are simply testable explanations that must be checked against artifacts and timelines.

If you want one guiding principle for how to investigate, use this: treat “file not found” as a scope + timeline problem. You are trying to determine whether the file never existed, existed and was removed, existed elsewhere, or could not be found because of exam limitations. NIST’s forensic guidance is a useful reference point for how examiners typically preserve, validate, and analyze digital evidence [2].

Why courts may still credit Torrential Downpour evidence

Courts and factfinders often focus on what the investigative record shows happened on the network, even if the later disk picture is incomplete. In practice, the government may argue:

  • “The tool observed and recorded P2P activity tied to an IP:port at specific times.”
  • “A controlled download occurred (sometimes framed as ‘single-source’).”
  • “Identifiers and logs tie that activity to the defendant’s residence/device.”

Practically, that kind of TD narrative is often sufficient to support probable cause for a search warrant of the premises [1].

But in many cases, when the specific files referenced in the TD logs are not found on the seized devices, prosecutors may choose to drop (or not pursue) a possession count and proceed only on a narrower theory (for example, a distribution-related charge). That is case-dependent and can vary by jurisdiction, evidence posture, and office policy.

Your job is to evaluate whether those claims are supported by the run artifacts and whether the jump from “network activity” to “this person knowingly possessed/distributed” is warranted in your case.

Defense forensic work-up (a practical checklist)

If “file not found” is going to matter in your case, treat it like a structured investigation. Here is a work-up list that tends to produce clarity.

1) Confirm imaging scope and completeness

  • What devices were seized vs. what devices exist?
  • What storage was imaged (internal drives, external drives, removable media)?
  • Was there full-disk imaging or triage?
  • Were all user profiles captured?

2) Examine unallocated space and remnants

  • Look for remnants of partial files and deleted content.
  • Look for indicators that files existed historically but were removed.

3) Identify BitTorrent client artifacts and “resume” data

Even when content is gone, clients often leave traces:

  • Resume/torrent job metadata
  • Client logs
  • Configuration indicating default paths, “move on completion,” seeding limits, auto-start

This is also where you can check whether the client behavior aligns with the government’s theory of how the file would have been stored.

4) Reconstruct a timeline from OS artifacts

Timeline reconstruction is usually the heart of “file not found” litigation.

Examples of useful artifact categories (non-exhaustive):

  • Download folder activity and path changes
  • Recently opened files / recent items
  • Jump lists and link files
  • Browser downloads/history (when relevant)
  • USB connection history
  • Cloud sync logs / client logs (when relevant)

The goal is to triangulate: when the alleged activity happened, what was running, what paths were used, and what changed after.

5) Compare device-side artifacts to TD run artifacts

Do not treat the TD report as a story—treat it as a set of claims that must be audited.

Start with the “crown jewel” artifacts (or their equivalents for the TD version used):

  • Datawritten.xml
  • downloadstatus.xml
  • details.txt
  • torrentinfo.txt
  • netstat.txt

If you haven’t requested them yet, see: Datawritten.xml and downloadstatus.xml.

What to ask the government examiner (high-yield questions)

These questions help you expose gaps in scope, preservation, and inference:

  • Imaging scope
    • “Which devices and which drives were imaged? Which were not?”
    • “Was any triage performed instead of full imaging?”
    • “Were encrypted containers or protected volumes present?”
  • Search methodology
    • “What exact search strategy was used (hash sets, keywords, file signatures, carving)?”
    • “Was unallocated space examined? To what extent?”
    • “Were alternate data locations checked (temp folders, secondary drives, VM images)?”
  • Artifact preservation
    • “Were BitTorrent client logs/resume data preserved in the case file?”
    • “Were OS timeline artifacts preserved, or only contraband-labeled outputs?”
  • Inference discipline
    • “What specific artifact supports your claim that the file was on disk (vs. a network claim)?”
    • “If the file was not found, what alternative explanations did you test?”

The caution (and the opportunity)

Absence on disk is not the same as absence historically. Sometimes the evidence shows prior activity and later deletion. Sometimes it shows examiner scope limitations. Sometimes it shows the government’s story is overstated.

Your opportunity is to convert the mismatch into a clear, credible argument:

  • Identify exactly what is proven (network activity, identifiers, transfers, verification).
  • Identify exactly what is missing (device-side corroboration, complete file, full scope).
  • Show why the gap matters under your case’s elements and theory.

If you want help translating a production into a forensic work-up plan and targeted discovery requests, contact Lucid Truth Technologies using the LTT contact form: Contact.

References

[1] United States v. Ewing, No. 24-11308 (11th Cir. 2025), Justia US Law. [Online]. Available: https://law.justia.com/cases/federal/appellate-courts/ca11/24-11308/24-11308-2025-06-23.html

[2] K. Kent, S. Chevalier, T. Grance, and H. Dang, “Guide to Integrating Forensic Techniques into Incident Response (SP 800-86),” NIST, 2006. [Online]. Available: https://nvlpubs.nist.gov/nistpubs/Legacy/SP/nistspecialpublication800-86.pdf

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This article is for informational purposes and does not provide legal advice. Every case turns on specific facts and controlling law in your jurisdiction. Work with qualified counsel and, where appropriate, a qualified expert.