Electronic Discovery Law

Posted at 5:50 AM on December 15, 2004 by K&L Gates

Court Denies Ex Parte Order to Preserve Electronic Evidence

Adobe Sys., Inc. v. South Sun Prods., Inc., 187 F.R.D. 636 (S.D. Cal. 1999)

Software makers sued for copyright infringement, alleging that the defendant had purchased single copies of certain software packages and installed software on multiple computers. On the same day the complaint was filed, plaintiffs sought an ex parte preservation order, arguing that the defendant could easily remove evidence of infringement by deleting software from its computers.

The court observed:

[I]n every civil action there is a possibility that a defendant will destroy or conceal evidence once it receives notice that an action has been commenced. Once notified, a defendant can erase its computer disks, burn, shred, or hide incriminating documents, and intimidate or coach potential witnesses. This opportunity presents itself to defendants in all civil cases, from high stakes technology disputes to routine personal injury and small claims actions. The extraordinary remedy of ex parte injunctive relief cannot be justified by merely pointing to the obvious opportunity every defendant posses to engage in such unlawful deceptive conduct. Rather, a plaintiff must present specific facts showing that the defendant it seeks to enjoin will likely conceal, destroy, or alter evidence if it receives notice of the action.

187 F.R.D. at 641. Finding that the plaintiffs had failed to make out the requisite showing, the court denied plaintiffs' ex parte application.

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