Inspection – Page 3 – Electronic Discovery Law

Chen v. New Trend Apparel, No. 11 Civ. 324 (GBD) (MHD), 2012 WL 4784855 (S.D.N.Y. Oct. 2, 2012)

Dec 01 2012

Key Insight: Court denied motion to compel inspection of defendants? computers reasoning that such inspections are granted only under limited circumstances ?when there is reason to believe that a litigant has tampered with the computer or hidden relevant materials despite demand for them in the course of the lawsuit or when the possession or use of the computer is an element of the parties’ claims or defenses? and further reasoning that movants made no showing to justify their request, particularly where certain information they sought had already been provided

Electronic Data Involved: Hard drives

In re Jordan, —S.W.3d—, 2012 WL 1098275 (Tex. Ct. App. Apr. 3, 2012)

Dec 01 2012

Key Insight: Court conditionally granted writ of mandamus upon finding that In re Weekley Homes was controlling and that the lower court had abused its discretion by not following the procedures elaborated therein, including that the party who was granted access to relator?s computer (through a forensic examiner) failed to explain its search methodology or its expert’s credentials and that there was no evidence that the court considered a protective order

Nature of Case: Hostile work environment

Electronic Data Involved: Personal computer

Crop Data Mgmt. Sys., Inc. v. Software Solutions Integrated LLC, No. 2:11-cv-01437 LKK KJN, 2012 WL 2571201 (E.D. Cal. July 2, 2012)

Dec 01 2012

Key Insight: Court denied plaintiff?s motion to compel ?complete forensic imaging and an open ended computer inspection of all of defendants ?electronically stored information?? where the court found the request was overly broad in scope and unduly burdensome and costly in light of the time and cost of the necessary privilege reviews by defendants and other expenses associated with the business interruption of such inspections, where ?plaintiff ha[d] not reasonably attempted to obtain the information it [sought] short of the proposed, burdensome computer investigation,? and where it was ?highly improbable? that the parties could complete the inspection by the close of discovery

Electronic Data Involved: Forensic inspection of computers and servers

Bourne v. Arruda, No. 10-cv-393-LM, 2012 WL 1570831 (D.N.H. May 3, 2012)

Dec 01 2012

Key Insight: Court denied plaintiff?s motion for access to defendants? computers and other electronic storage devices (at defendants? expense) where plaintiff?s allegations of incomplete discovery and spoliation were merely speculative and were insufficient to justify his request

Nature of Case: Defamation

Electronic Data Involved: Computers, electronic storage devices

Rudolph v. Beacon Indep. Living, LLC, No. 3:11-CV-617-FDW-DSC, 2012 WL 2804114 (W.D.N.C. July 10, 2012)

Dec 01 2012

Key Insight: Where it was undisputed that Defendant instructed a non-party witness to delete relevant emails on his computer and that the non-party complied, court granted in part plaintiff?s motion for sanctions and ordered that defendant and the non-party preserve all ESI going forward, that defendant and the non-party submit their computers for forensic examination to recover deleted emails and to gather native format versions of information previously produced ?as fixed images,? that defendant pay the cost of the forensic examinations, and that defendant bear plaintiffs? attorneys costs and fees for preparing the underlying motion

Electronic Data Involved: Emails, ESI

In re M., No. 09-12-00179-CV, 2012 WL 1808236 (Tex. Ct. App. May 17, 2012)

Dec 01 2012

Key Insight: The appellate court held that the trial court had erred in admitting appellant?s cellular phone into evidence and in granting opposing counsels? oral motion for forensic examination of that phone where the phone was initially surrendered by appellant to allow for the reading of particular, relevant, messages and not requested by a formal discovery request as is required by law, where appellant had no opportunity to object to the scope of the production or to assert his privileges and where the rules of discovery require the least intrusive means of retrieval and direct access to devices is discouraged

Nature of Case: Child custody

Electronic Data Involved: Cellular phone and contents

Ceglia v. Zuckerberg, No. 10-CV-00569A(F), 2012 WL 95362 (W.D.N.Y. Jan. 10, 2012)

Dec 01 2012

Key Insight: Where plaintiff acted to avoid compliance with court?s order to produce information related to email accounts, including passwords, by repeatedly filing motions to stay discovery and by modifying the consent forms related to the examination of his email accounts to effectively delay the search, despite the court?s denial of his motions to stay discovery, the court ordered civil contempt sanctions and ordered plaintiff to pay $5,000 to the court and also ordered payment of defendants? attorneys? fees and costs related to Defendants? Accelerated Motion to Compel, necessitated by plaintiff?s dilatory behavior

Nature of Case: Breach of contract

Electronic Data Involved: Access to emails (passwords, etc.) for forensic examination

United States v. Jarman, No. 11-31217, 2012 WL 2700403 (5th Cir. July 9, 2012)

Dec 01 2012

Key Insight: Circuit court affirmed district court?s granting of defendant?s motion to compel production of a mirror image of a hard drive containing child pornography evidence where defendant?s expert presented unrebutted evidence that she could not conduct her investigation at a government facility because of ?time limitations and restrictions? and thus the circuit court could not conclude that the district court?s determination of ?no ?amply opportunity?? to investigate was clear error; court clarified, however, that it rejected the notion that inconvenience equated to a failure on the part of the government to make the child pornography evidence reasonably available and clarified that when such evidence is made available for inspection at a government facility, ?that is reasonable availability? such that the only issue to be resolved is whether the conditions imposed do not provide ?ample opportunity? for examination of the material

Nature of Case: child pornography; Adam Walsh Act

Electronic Data Involved: Child pornography evidence on hard drive

Townsend v. Ohio Dept. of Transp., No. 11AP-672, 2012 WL 2467047 (Ohio Ct. App. June 28, 2012)

Dec 01 2012

Key Insight: Trial court abused its discretion in denying motion to conduct forensic analysis of defendant?s email and electronic data systems where defendant?s employee admitted to sending a highly relevant email that was never produced and where defendant failed to establish that production ?would incur undue burden or expense?; court?s analysis included consideration of whether deleted emails were discoverable (yes) and the need for a protocol to protect the producing party?s privilege, confidential information

Nature of Case: Personal injury resulting from auto accident

Electronic Data Involved: Email

United States v. Tummins, No. 3:10-00009, 2011 WL 2078107 (M.D. Tenn. May 26, 2011)

Dec 01 2011

Key Insight: Court granted motion to compel production of defendant?s hard drive with all child pornography files redacted where the court determined that the likelihood that child pornography would remain on the drive after steps to redact were taken was ?relatively low? and where the government?s inspection accommodations in lieu of production did not provide the statutorily required ?ample opportunity for inspection? where the restrictions on inspection limited the time allowed for inspection and required the forensic examiner to leave his equipment unattended

Nature of Case: Criminal/ possession of child pornography

Electronic Data Involved: Hard drive

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