Post Process

Everything to do with E-discovery & ESI

PI Licensing Laws in Texas and Michigan Continue to get Press

Posted by rjbiii on July 31, 2008

This time, the CEO (and former litigator) of Catalyst, John Tredennick, writing in Law Technology Today (reg’n may be required) passes comment:

Two states have recently enacted statutes that make it a crime for unlicensed individuals to engage in computer forensics. Texas passed a law that would give regulators the power to impose up to a year in jail and a $14,000 fine on people doing “computer investigations.” Michigan went a bit further. On May 28 th of this year, Governor Jennifer Granholm signed into law a bill that makes unlicensed computer forensics work in Michigan a felony punishable by up to a four-year prison term, damages of up to $25,000 and a criminal fine of up to $5,000.

Read the article for details, but Tredennick summarizes the Texas law thusly:

As I read these [Regulatory Agency] opinions, there is some comfort for people doing routine electronic discovery collection but not if there is a forensic or testimonial aspect to the collection. There is a strong suggestion that experts who are called to testify in Texas courts regarding examinations of electronic files better be licensed in Texas. If you don’t have a license, you might be pulled off the stand and escorted to the hoosegow for an extended visit.

Seriously…not the hoosegow!

With respect to Michigan:

How far does this reach?

Good question. If I were a forensics expert and offering testimonial services, I would be pretty nervous about this law. The Act seems to focus on:

Computer forensics to be used as evidence before a court, board, officer, or investigating committee.

Most electronic discovery is focused on collection rather than forensics and an argument could be made that your eDiscovery efforts are not about forensics but rather the collection of relevant evidence for review. But do you want to make this argument to some Michigan criminal court? I wouldn’t.

Post Process has previously blogged on this issue (here, here, here, here, here, and here).

2 Responses to “PI Licensing Laws in Texas and Michigan Continue to get Press”

  1. Stephanie said

    Do the rulings in Michigan or Texas differentiate between performing forensic services or eDiscovery services within a Corporation versus hanging out a shingle to the public?

  2. rjbiii said

    Hi Stephanie,

    Thank you so much for reading!

    I am more familiar with the situation in Texas, than in Michigan. In Texas, the Private Security Bureau has made a distinction between merely acquiring data, and analyzing it. This gives some lit support companies some leeway. However, it appears to me that any activity related to actually analyzing the data may be considered a “regulated activity,” no matter what the client corporation wants. In fact, the Texas law prohibits the hiring of an unlicensed “PI,” so there may be liability on the part of the client as well. I do not know if Michigan’s regulatory agency has released any similar statements. Also, keep in mind that while receiving a great deal of deference, the agency’s opinion does not carry the same weight as a judicial opinion. Therefore it may not have the last word.

    If you haven’t followed the links at the bottom of the main post above, do so; they contain details that might be of interest to you.

    Now follows the disclaimer. This advise is not designed to provide legal counsel to you, or any other person, and this communication does not constitute or imply the existence of an attorney client relationship. Please seek the services of an attorney licensed in the appropriate jurisdiction should you be in need of such services.

    Again, thank you for reading the blog!

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: