Post Process

Everything to do with E-discovery & ESI

Archive for June 19th, 2008

Case Blurb: Search Cactus; Court lays out Protocol for Forensic Collection of Plaintiff’s Hard Drive

Posted by rjbiii on June 19, 2008

Post Process-Plaintiff Attorney objected to a forensics exam of his computer hard drive, a computer which he used both personally and professionally. The court, though noting the validity of issues raised, ruled for Defendants. In doing so, it appointed two forensics experts to act as officers of the court, and issued the following protocol:

[T]his Court ORDERS:
1. Within seven days of the date of this Opinion and Order, Plaintiff’s forensic computer expert shall mirror image both of Plaintiff’s computer systems’ hard drives and Plaintiff shall preserve this mirror image.

2. Plaintiff’s forensic computer expert shall then remove only Plaintiff’s confidential personal information from the mirror image of Plaintiff’s computer systems’ hard drives. Plaintiff’s expert shall provide Defendants with the protocol he utilized to remove the confidential information.

3. Plaintiff shall then provide Defendants’ computer forensic expert access to his computer systems’ hard drives.

4. Defendants’ forensic computer expert shall mirror image Plaintiff’s computer systems’ hard drives in approximately four to eight hours for each system. If the expert finds that this is not enough time, Plaintiff is expected to be reasonable in allowing some additional time. Defendant is expected to be considerate with regard to scheduling times that are less intrusive to Plaintiff and his business.

5. Defendants’ expert shall review his findings in confidence with Plaintiff prior to making any findings available to Defendants.

6. Plaintiff shall identify for deletion any information that is irrelevant and create a specific privilege log of any relevant information for which he claims privilege. The computer forensic expert shall remove the information claimed as privileged and provide all other information to Defendants.

7. Defendants’ expert shall provide Plaintiff with the protocol he utilized to remove the privileged information.

8. Forensic computer experts C. Matthew Curtin and Scott T. Simmons shall act as officers of this Court. Defendants shall be responsible for remunerating Mr. Curtin and Plaintiff shall be responsible for remunerating Mr. Simmons.

Ferron v. Search Cactus, L.L.C., 2008 WL 1902499 at *5 (S.D. Ohio Apr. 28, 2008 )

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Posted in 6th Circuit, Computer Forensics, Cost of Discovery, Duty to Preserve, Duty to Produce, Form of Production, Judge Gregory L. Frost, Privacy, Privilege Log, S.D. Ohio | Tagged: , , , , , | Leave a Comment »

Case Blurb: Search Cactus LLC; Forensics Examiners to Serve as Officers of the Court

Posted by rjbiii on June 19, 2008

Post Process-Plaintiff Attorney objected to a forensics exam of his computer hard drive, a computer which he used both personally and professionally. The court, though noting the validity of issues raised, ruled for Defendants. In doing so, it appointed two forensics experts to act as officers of the court:

It appears to the Court that both of the forensic computer experts presented to it are qualified. In certain situations, courts appoint computer forensic experts to act as officers of the court to help “reduce privacy intrusions and privilege waiver issues during forensic analysis.” Mark E. Borzych, Avoiding Electronic Discovery Disputes: Practice Questions Answered, 41 AZ Attorney 36 (January 2005). See also Thielen, 2007 U.S. Dist. LEXIS 8998, at *8 (court ordered forensic analysis by third party and accepted that no waiver of privilege occurred). Thus, the two identified computer forensic experts shall serve as officers of this Court.

Ferron v. Search Cactus, L.L.C., 2008 WL 1902499 at *4 (S.D. Ohio Apr. 28, 2008 )

Posted in 6th Circuit, Case Blurbs, Computer Forensics, Judge Gregory L. Frost, Neutral Third Party, Privacy, S.D. Ohio | Tagged: , , , , , | Leave a Comment »

Does Outsourcing Lit Support to other Countries endanger Constitutional Protections?

Posted by rjbiii on June 19, 2008

K&L Gates has posted an article describing one law firm’s effort to obtain guidance on the issue whether transmitting data to foreign service providers waives fourth amendment protections with respect to that data.

The issues posed arising a scenario in which a service provider (in this case, Indian based Acumen Legal Services (India) Pvt., Ltd.) seeking to provide services to a law firm (Newman McIntosh & Hennessey, LLP of Bethesda, Maryland, “NMH”) is probably already providing services to attorneys who either compete with NMH or who represents interests that are adversarial to NMH’s clients. The questions posed in the complaint were whether:

1) its own electronic transmission of client data will affect a waiver of Fourth
Amendment protections to that data,
2) John Doe Esq. or Jane Doe, Esq.’s electronic transmission of non-client
data (such as data produced to John Doe, Esq. and Jane Doe, Esq. during civil discovery)
will waive Fourth Amendment protections to such data,
3) NMH, John Doe, Esq., and Jane Doe, Esq. are required to obtain prior
consent of the owner of such data prior to electronically transmitting it to a foreign
national residing overseas,
4) LPOs, such as Acumen, have an obligation to disclose the likelihood of
Fourth Amendment waiver with respect to data that is electronically transmitted to
foreign nationals residing overseas, and
5) President Bush has an obligation to establish intelligence gathering
protocols for the purpose of safeguarding Fourth Amendment rights with respect to
attorney communications to and from foreign nationals residing overseas.

K&L’s post has a link to the complaint, for those interested. Although this particular case applies to criminal cases, decisions here will affect all types of cases in a myriad of ways. One concerned Outsourcing company has posted its opinion on the matter.

Posted in 4th Circuit, Articles, D.D.C., EDD Industry, EDD Processing, EDD Vendors, International Issues, Judge Colleen Kollar-Kotelly | Tagged: , , | Leave a Comment »