Electronic Discovery Law
Court's Chambers Used to Make Forensic Image of Defendant's Hard Drive; Court Enters Protective Order Directing Plaintiffs Not to Disclose Contents Unrelated to the Action
Warner Bros. Records, Inc. v. Souther, 2006 WL 1549689 (W.D.N.C. June 1, 2006)
In this case, plaintiffs sued for copyright infringement, contending that defendant unlawfully downloaded and distributed copyrighted materials through the use of a peer-to-peer, online media distribution system. Defendant denied the allegations and further denied giving anyone permission to use the computer to conduct the activities complained of. Discovery disputes ensued, and plaintiffs filed motions to extend the discovery deadline and to compel full and complete answers to interrogatories.
In the opinion, the court described how it had allowed plaintiffs to obtain a forensic image of defendant's computer hard drive in the court's chambers during the hearing:
In the Request for Production of Documents served by plaintiffs upon the defendant on December 5, 2005, defendant was requested to provide Electronic copy of the registry files of her computer (Request # 16) and copy of that computer's windows desktop (Request # 17). Instructions were provided to defendant as to how these copies were to be provided. Defendant responded that she, "tried to follow these instructions and got no results". The court entered an Order on May 16, 2006, ordering the defendant's counsel to bring the computer to the hearing scheduled for May 26, 2006. The court was then to determine whether to allow the plaintiffs to examine the computer. After hearing arguments, the undersigned was assured by plaintiffs' counsel that a forensic technician had been hired by the plaintiffs who was present and available and who could copy the computer's electronic contents without injuring the computer. The court then orally ordered that the computer be taken into the court's chambers so that the forensic technician could make a copy of the computer's electronic information while further proceedings in this matter were taking place. The document and file retrieval was accomplished.
The court went on to state that, although it had not been requested to do so, it would "enter a Protective Order directing that the plaintiffs not disclose or use any electronic contents of the computer that are unrelated to this case." It further stated:
The cost of the document retrieval will be determined after the plaintiffs have filed the affidavit discussed hereinafter, including a statement as to whether such hardware contained any copyrighted materials belonging to plaintiffs and, if so, the costs of such retrieval. By June 2, 2006, defendant shall file an affidavit concerning her computer skills so that the court may make an appropriate determination under Rule 37 as to the reasonableness of defendant's efforts prior to court intervention.
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