Archive: June 27, 2008

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Sixth Circuit Finds Demonstrable Abuse of Discretion in Trial Court’s Order Requiring Forensic Imaging of State-Owned and Privately-Owned Computers by Plaintiffs’ Computer Expert with Assistance from U.S. Marshal

Sixth Circuit Finds Demonstrable Abuse of Discretion in Trial Court’s Order Requiring Forensic Imaging of State-Owned and Privately-Owned Computers by Plaintiffs’ Computer Expert with Assistance from U.S. Marshal

John B. v. Goetz, 2008 WL 2520487 (6th Cir. June 26, 2008)

In this case, state defendants sought mandamus relief from two discovery orders issued by the district court during the course of the class-action litigation.  The district court had issued the orders after a discovery dispute arose regarding defendants’ duty to preserve and produce ESI relevant to the litigation.  In the first order, the district court directed plaintiffs’ computer expert and a court-appointed monitor to inspect the state’s computer system and the computers of 50 key custodians to ascertain whether any relevant information has been impaired, compromised, or removed.  The second order denied reconsideration of the first order and directed that the first order be executed forthwith.  Both orders allowed plaintiffs’ computer expert to make forensic copies of the hard drives of identified computers, including not only those at the work stations of the state’s key custodians, but also any privately owned computers on which the custodians may have performed or received work.  The orders also directed the U.S. Marshal, or his designated deputies, to accompany plaintiffs’ computer expert to ensure full execution of the orders.

The Sixth Circuit entered an emergency stay of implementation of the orders on December 7, 2007, which was previously summarized here.

In this decision, the Sixth Circuit concluded that certain aspects of the district court’s November 15 and 19 orders constituted a “demonstrable abuse of discretion.”  Accordingly, it granted, in part, defendants’ petition for mandamus and set aside those provisions of the district court’s orders that required the forensic imaging of state-owned and privately owned computers, including the provisions that required the U.S. Marshal or his designee to assist plaintiffs’ computer expert in the execution of the orders.

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