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Court Orders Mirror-Imaging of Personal Computers for Purpose of Preservation

Posted in CASE SUMMARIES

United Factory Furniture Corp. v. Alterwitz, No. 2:12-cv-00059-KJD-VCF, 2012 WL 1155741 (D. Nev. Apr. 6, 2012)

Here, the court granted plaintiff’s motion to compel mirror-imaging of defendants’ personal computers for the purpose of preservation where plaintiff alleged that defendants had wrongfully accessed its computer systems using the personal computers at issue, where plaintiff asserted that defendants’ ongoing use of the computers would result in the loss of relevant data, and where the court determined that in light of the circumstances of the case (and following analysis of the relevant factors) the need for mirror-imaging outweighed the burden.

This case was filed under interesting circumstances: defendants were terminated from United Factory Furniture Corporation (“UFFC”) upon UFFC’s discovery that they were wrongfully accessing the company’s information systems and manipulating data, among other things.  Following that termination, defendant Alterwitz filed suit against UFFC.  While that litigation was pending, UFFC became concerned that defendants continued to access its information systems using a “back door” to the company server that was set up by defendant Green (Alterwitz’s husband), whose prior employment with UFFC involved managing and maintaining its computer server and network services.  These fears were exacerbated by defendant Alterwitz’s statement that she knew “what is being written in company emails” and her production of emails which were neither sent to, nor from, defendant Alterwitz or her husband.  Closer investigation confirmed that tampering with UFFC’s information systems was ongoing.  Thus, UFFC filed its own action, which underlies the opinion summarized here.

Fearful of the loss of relevant information, UFFC filed a motion seeking a preliminary injunction/preservation order and an order compelling the creation of mirror-images of defendants’ personal computers.  Initially, the court found that there was good cause to permit expedited discovery.  Taking up the motion for a preliminary injunction/preservation order, the court determined that no such injunction was necessary where defendants were already under an obligation to preserve relevant evidence and because the court would grant the motion to compel mirror-imaging.

Turning then to the motion for mirror-imaging, UFFC was particularly concerned that ongoing use of the computer equipment at issue would result in information being overwritten or lost.  Defendants objected, arguing that taking mirror-images of their personal computers would be unduly intrusive and would violate the federal rules because discovery had not yet commenced.  “Considering the circumstances of this case,” the court disagreed and found mirror-imaging to be “appropriate to maintain the status quo.”  The court’s analysis also weighed the benefit and burden of the requested imaging considering 1) the needs of the case, 2) the amount in controversy, 3) the importance of the issues at stake, 4) the potential for finding relevant material, and 5) the importance of the proposed discovery in resolving the issues.  The court determined that all factors weighed in favor of mirror-imaging.  The court also noted plaintiff’s willingness to bear the costs associated with the imaging.

Accordingly—and recognizing the defendants’ privacy interests—the court outlined a protocol which would result in the mirror-imaging of defendants’ personal computers and other functional electronic devices by a neutral examiner who would be subject to a protective order and would serve as an officer of the court.  The resulting mirror-images would then be secured in the Clerk’s Office vault.  The mirror-images would remain there unless UFFC had reason to believe that spoliation had occurred, at which time a motion to compel access would have to be filed.  If no such motion was filed, the mirror-images would be disposed of upon resolution of the action.

  • http://www.splaws.com Ben – researching technology law

    Interesting decision. Possession and law within the realm of technology seems to be becoming only increasingly difficult to understand.

    Thanks for the post.
    Ben

  • http://www.craigball.com Craig Ball

    Well reasoned and laudably cautious; however, I wish the Court had employed more precise language than “mirror image” because, from the context, the Court clearly intends that a forensically-sound bit stream acquisition of the complete contents of the drives and devices be created. Anything less would be of limited value in a case like this where the parties must necessarily anticipate the potential for forensic examination in the event of subsequent allegations of spoliation.

    Unfortunately, “mirror image” is susceptible to at least two meanings in information technology, and the most common usages (i.e., a RAID 1 mirror or a Ghost mirror) do not capture the forensically significant data found in the unallocated clusters of the media (where deleted data tends to reside). In the future, let’s hope parties and courts will make this important distinction clear and require, e.g., a “forensically-sound image of the drive;” thereby invoking, inter alia, a particularized process, a proper chain-of-custody and hash authentication.