In Re Weekley Homes, L.P., 2009 WL 2666774 (Tex. Aug. 28, 2009)
Covad Communications Co. v. Revonet, Inc., 258 F.R.D. 5 (D.D.C., 2009)
Given the seemingly ever-growing complexity of computer systems, an “old-school” approach may be helpful when addressing the issues presented by a request to have a forensic image made of your client’s computers. By “old school,” we are not referring to the 2003 movie by the same name about a start-up college fraternity starring Vince Vaughn, Will Ferrell and Luke Wilson, although renting that comedy might be good for your mental health after dealing with a request for forensic imaging. Urban Dictionary defines the term “old school” as anything that refers to a previous generation of a subject, idea or object, and that is how we propose the issues presented by a request for forensic imaging should be addressed.
How would a court respond to a request by opposing counsel to allow entry onto your client’s offices in order to rummage through the client’s file cabinets, simply because he did not believe your client produced all potentially relevant documents sought by his discovery requests? Most courts would deny such a request absent proof of deliberate withholding of information by the client or extenuating circumstances.
A request for forensic imaging of your client’s computers is essentially no different than a request to rummage through your client’s file cabinets made two decades ago. While today’s computers and servers can obviously do more than merely store ESI, they are the digital era’s filing cabinets of today. Further complicating the matter is that unlike two decades ago when confidential or proprietary information would be separately stored in a secure location by a client, today privileged or confidential information frequently resides side-by-side with Aunt Sophie’s apple pie recipe on a computer’s hard drive. So forget about sectors, clusters, slack space and how a computer’s hard drive may be partitioned for the moment, and consider going “old school” when your opponent makes such a request.
This post will address two recent decisions covering these issues. After analyzing applicable federal case law, the Texas Supreme Court in Weekley concluded that a trial court abused its discretion when it ordered four of the defendant’s employees to turn their computer hard drives over to forensic experts for imaging, copying and searching for deleted emails. In Covad Communications, Judge John Fasciola of the District of Columbia District Court granted a request to have forensic images made of several of the defendant’s databases and email servers. Judge Fasciola is regarded for his thought provoking ediscovery decisions. Both Weekly and Covad arguably take an old school approach to the forensic imaging issues presented, and provide insight into those factors that should be addressed whenever a request for forensic imaging is made, and the ways to limit the intrusiveness of such a search when it is allowed by the court.Leave a Comment »