Post Process

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Archive for the ‘S.D. Ohio’ Category

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 »

Case Blurb: Scotts Co.; Forensic Copies not required by amended FRCP

Posted by rjbiii on November 19, 2007

The 2006 amendments to Rule 34 of the Federal Rules of Civil Procedure simply clarify “that discovery of electronically stored information stands on equal footing with discovery of paper documents.” Fed.R.Civ.P. 34 Advisory Committee’s Note on 2006 Amendments. Consequently, without a qualifying reason, plaintiff is no more entitled to access to defendant’s electronic information storage systems than to defendant’s warehouses storing paper documents.

The discovery process is designed to be extrajudicial, and relies upon the responding party to search his records to produce the requested data. In the absence of a strong showing that the responding party has somehow defaulted in this obligation, the court should not resort to extreme, expensive, or extraordinary means to guarantee compliance. Imaging of computer hard drives is an expensive process, and adds to the burden of litigation for both parties, as an examination of a hard drive by an expert automatically triggers the retention of an expert by the responding party for the same purpose. Furthermore, as noted above, imaging a hard drive results in the production of massive amounts of irrelevant, and perhaps privileged, information. Courts faced with this inevitable prospect often erect complicated protocols to screen out material that should not be part of discovery. See, e.g., Playboy Enters., 60 F.Supp.2d [1050, 1054 (S.D.Cal.1999) (appointing court’s expert to conduct examination). Again, this adds to the expense and complexity of the case.
This court is therefore loathe to sanction intrusive examination of an opponent’s computer as a matter of course, or on the mere suspicion that the opponent may be withholding discoverable information. Such conduct is always a possibility in any case, but the courts have not allowed the requesting party to intrude upon the premises of the responding party just to address the bare possibility of discovery misconduct.

The Scotts Co. v. Liberty Mutual Ins. Co., 2007 WL 1723509 (S.D. Ohio June 12, 2007) (quoting with approval Diepenhorst v. City of Battle Creek, 2006 U.S. Dist. LEXIS 48551, *10-11 (W.D. Mich. June 30, 2006).)

Posted in 6th Circuit, Case Blurbs, Computer Forensics, Data Collection, Magistrate Judge Norah McCann King, S.D. Ohio | Tagged: , | Leave a Comment »

Case Blurb: Ed Donnelly Ents., Inc.; Relationship between adverse inference instruction and records practices examined

Posted by rjbiii on September 3, 2007

Plaintiff’s perception of the deficiencies of defendants’ electronic record-keeping is irrelevant to the request for an adverse inference instruction for the intentional loss or destruction of records after defendants received notice of this litigation and is not a basis for inferring that defendants intentionally lost or destroyed [the document] at issue. O’Brien v. Ed Donnelly Ents., Inc., 2006 WL 2583327 (S.D. Ohio).

Posted in 6th Circuit, Adverse Inference, Case Blurbs, Data Management, Duty to Produce, Magistrate Judge Norah McCann King, S.D. Ohio, Sanctions | Leave a Comment »

Case Blurb: Ed Donnelly Ents., Inc.; Denying request for Adverse Inference Instruction

Posted by rjbiii on September 3, 2007

Plaintiffs request for an adverse inference instruction based on defendant’s failure to produce evidence was denied by the court because the destruction of evidence made before notice of litigation did not provide the court with any foundation to infer that the missing evidence was adverse to defendant. O’Brien v. Ed Donnelly Ents., Inc., 2006 WL 2583327 (S.D. Ohio) (citing Joostberns v. United Parcel Servs., Inc., 166 Fed. Appx. 783, 796 (6th Cir. 2006)).

Posted in 6th Circuit, Adverse Inference, Case Blurbs, Magistrate Judge Norah McCann King, S.D. Ohio | Leave a Comment »

Case Blurb: Ed Donnelly Ents., Inc.; Inherent authority to govern process given to courts w/o regard to FRCP

Posted by rjbiii on August 29, 2007

Fed. Courts possess inherent authority to sanction bad-faith conduct w/o regard to whether such conduct could be sanctioned under other applicable rules or statutes. O’Brien v. Ed Donnelly Ents., Inc., 2006 WL 2583327 (S.D. Ohio).

Determination of the correct sanction for discovery misconduct is left to the broad discretion of the trial court. Id. (citing Nat’l Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 642 (1976)).

Posted in 6th Circuit, Case Blurbs, Inherent Power of Fed. Courts, Magistrate Judge Norah McCann King, S.D. Ohio, Sanctions | Leave a Comment »

Case Blurb: King Lincoln Bronzeville Neighborhood Assn; Court’s authority to sanction

Posted by rjbiii on August 29, 2007

A trial court has the authority to sanction a party for failing to preserve evidence that it knows or should know is relevant before litigation is commenced. King Lincoln Bronzeville Neighborhood Ass’n v. Blackwell, 448 F.Supp.2d 876 (S.D. Ohio 2006) (citing United States v. Kitsap Physicians Service, 315 F.3d 995, 1001 (9th Cir. 2002)).

Posted in 6th Circuit, Case Blurbs, Inherent Power of Fed. Courts, S.D. Ohio, Sanctions | Leave a Comment »