Electronic Discovery Law
Court Sets Protocol for Forensic Examination of Employment Discrimination Plaintiff's Home Computers
Coburn v. PN II, Inc., 2008 WL 879746 (D. Nev. Mar. 28, 2008)
In this employment discrimination case, defendants sought a forensic examination of plaintiff’s home computers. Defendants explained that the inspection would focus on information relating to Coburn's employment with defendants, the termination of that employment, allegations or claims Coburn was making in this action, and damages resulting from the actions or inactions of defendants. Plaintiff did not object generally to a “limited, focused” inspection, but opposed the request because defendants had not set forth a protocol or methodology that would protect her against violations of privilege, privacy and confidentiality interests.
The court found that the burden on plaintiff of such an inspection would be minimal. It noted that defendants sought only a mirror image or “clone copy” of the hard drive or drives in question, and that defendants had agreed to bear the entire cost of the forensic inspection. The court cited approvingly the protocol adopted in Playboy Enters., Inc. v. Welles, 60 F.Supp.2d 1050, 1054-55 (S.D. Cal.1999), finding that it offered “a suitable approach for protecting Coburn's communications with her attorney, and her privacy interests as well as the confidentiality interests of her new employer.”
Thus, the court set out the following protocol for the inspection:
a. The parties shall meet, confer and agree upon the designation of a computer expert who specializes in the field of electronic discovery to create a “mirror image” of the relevant hard drives. If the parties cannot agree on an expert, they shall submit suggested experts to the court by April 18, 2008. The court will then select and appoint a computer specialist. The services of the expert will be paid by defendants.
b. The court appointed computer specialist will serve as an officer of the court. To the extent the computer specialist has direct or indirect access to information protected by the attorney-client privilege, such “disclosure” will not result in a waiver of the attorney-client privilege. Defendants herein, by requesting this discovery, are barred from asserting in this litigation that any such disclosure to the court designated expert constitutes any waiver by Coburn of any attorney-client privilege. The computer specialist will sign a protective order stipulated to by the parties. Lastly, any communications between defendants and/or defendants' counsel and the computer specialist as to the payment of fees and costs pursuant to this order will be produced to Coburn's counsel.
c. The parties shall agree on a day and time to access Coburn's computer. Defendants shall defer to Coburn's personal schedule in selecting this date. Representatives of both parties shall be informed of the time and date, but only Coburn and her counsel may be present during the hard drive recovery.
d. After the computer specialist makes a copy of Coburn's hard drives, the “mirror image” (which the court presumes will be on or transferred to a disk(s)) will be given to Coburn's counsel. Coburn's counsel will print and review any recovered documents and produce to defendants those communications that are responsive to any earlier request for documents and relevant to the subject matter of this litigation. Such discovery shall include, but is not limited to, information pertaining to defendants' contention that Coburn misappropriated their trade secrets. All documents that are withheld on a claim of privilege shall be recorded in a privilege log.
e. Coburn's counsel will be the sole custodian of and shall retain this “mirror image” disk(s) and copies of all documents retrieved from the disk(s) throughout the course of this litigation. To the extent that documents cannot be retrieved from Coburn's computer hard drives or the documents retrieved are less than the whole of data contained on the hard drives, Coburn's counsel shall submit a declaration to the court together with a written report signed by the designated expert explaining the limits of retrieval achieved.
f. The “mirror image” copying of the hard drives, and the production of relevant documents, shall be completed by May 30, 2008.
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