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Archive for the ‘Hard Drive Inspections’ Category

Case Blurb: Younessi; Court Fashions Protective Order to Allow for Discovery but Protect Trade Secrets

Posted by rjbiii on July 3, 2008

The Court is convinced that this need is strong enough to warrant discovery from [Producing Party] and the Motion to Quash is DENIED. However, some form of protective order is appropriate and the Court now turns to what form that production should take.
In situations involving information which is appropriately kept private, the Court may fashion restrictions on the form and method of disclosure. See Playboy Enterprises, Inc. v. Welles, 60 F.Supp.2d 1050 (S.D.Cal.1999). In the interest of protecting private information such as trade secrets or privileged documents, the Court can order the responding party’s attorneys to search for all documents consistent with the subpoena and to produce only those which are relevant, responsive, and do not disclose trade secrets. See, e.g., id. The Court finds in Playboy an appropriate model for this case. There, the plaintiff sought to copy the defendant’s hard drives after it learned she may have deleted emails which could potentially prove the knowledge element of plaintiff’s infringement claims. Id. at 1051. Defendant responded with concerns that privileged communications would also be recoverable under such a procedure. Id. at 1054. The court ordered the copying, but directed defense counsel to search the copy for responsive materials instead of turning over the copied drives themselves. Id. at 1055

Here, [Requesting Party] also requests to copy [Producing Party’s] hard drives, a process which might reveal not just privileged, but also trade secret information. Having [Producing Party] search its own computers is an appropriate compromise here because of the unique status of [Requesting Party] as a direct competitor and of [Producing Party] as a nonparty [third party] to the underlying suit. The elaborate copying which took place in Playboy is not necessary because there are no allegations of documents being destroyed and [Producing Party] has shown that it is responsive and willing to cooperate with [Requesting Party’s] reasonable requests.

Daimler Truck N. Am. LLC v. Younessi, 2008 WL 2519845 (W.D. Wash. June 20, 2008 )

Posted in 9th Circuit, Case Blurbs, Data Collection, Data Sources, Duty to Produce, Form of Production, Hard Drive Inspections, Judge Ronald B. Leighton, Objections to Discovery Requests, Overly Broad Request, W.D. Wash. | Tagged: , | Leave a Comment »

Hard drive inspection requests during discovery

Posted by rjbiii on November 13, 2007 brings us an article on the protocols adopted by courts with respect to inspecting a party’s hard drive during discovery. As frequent readers of this page know, document production is typically left up to each party in a dispute. Thus, allowing one party (or its forenisc expert) to inspect another’s computer represents a bit of a departure from traditional practice:

As a federal district court judge recently observed, a computer itself is not evidence in most cases, but merely the instrument for creating evidence (like a typewriter) or the means of storing it (like a file cabinet).

Accordingly, today’s litigants routinely seek access to opponent’s computer hard drive to search for discoverable evidence, especially when the opposing party may not be forthcoming about deleted or transferred files.

Hard drive inspections, therefore, are likely to occur when one party is seen to be less than forthcoming with its productions than their obligations require.

Generally speaking, courts allow imaging of an opponent’s computer hard drive in situations involving an adversary’s unsatisfactory document production or a finding that a hard drive search would yield deleted items. For example, in Playboy Enters. v. Welles, 60 F.Supp.2d at 1050, rev’d on other grounds, Playboy Enters. v. Welles, 279 F.3d 796 (9th Cir. 2002), a trademark infringement case, the plaintiff’s discovery request included permission to have access to the defendant’s hard drive for the purpose of recovering deleted e-mails that allegedly were systematically erased after litigation commenced and that may have been highly relevant. In granting the defendant’s request, the court found that the need for the requested information outweighed the burden to the defendant. Some courts will issue discovery orders for expedited discovery at the outset of litigation when the subject matter of the dispute involves trade secrets or other sensitive information that can be easily erased or destroyed.

The article notes that often third party vendors are used to accomplish the inspection to prevent the perception (real or imagined) of the presence of bias or abuse in the process. The article also mentions that even when allowing these inspections, protections courts often establish protections against undue burdens or disclosure of privileged or private data. Remember in our last post, the court in Lakeside School set up a screening process so that an employee’s privileged “web based” e-mails were not disclosed to the school, despite the fact that the school owned the hard drive at issue, and the employee had signed an agreement allowing the school to inspect the computer.

Posted in Articles, Computer Forensics, FRCP 34(a), Hard Drive Inspections, Privacy, Scope of Discovery | Tagged: , | Leave a Comment »