Computer Forensics Protocols

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Can You “Triangulate” for ESI? Not without the Other Party’s Permission.

On October 4th of 2013, the Northern District of California issued a tentative ruling in a discovery dispute where the Defendant had “triangulated” its employees to identify who would possess relative discovery documents. It appears the Court had no issue with the “triangulation” technique.

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Plaintiffs Should Seek to Clone Hard Drives If They Suspect Spoliation Shenanigans

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Not Following the Rules Will Cost You

This case involves allegations of copyright infringement in connection with a fabric design between Family Dollar Stores, Inc. (“Family Dollar”) and L.A. Printex Industries, Inc. (“Printex”).  Of immediate concern is the discovery battle going in within the case.

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The Do’s and Dont’s of “Spying” On Your Spouse During A Divorce Proceeding

Divorce can be a stressful ordeal for many couples.  It can be even more stressful when the parties continue to live in the same household during their divorce proceedings.  In White v. White, while the couple’s divorce was pending, the husband continued to live in the sunroom of the marital home.  All family members had access to this room as it was where the family computer and home entertainment center was located.  After discovering evidence of her husband’s infidelity, the wife hired a private investigator to retrieve her husband’s stored e-mails to his girlfriend from the family computer hard drive.  The court ruled that this access was not unauthorized and held that the e-mails could be introduced into evidence if relevant to the custody matter.  

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Sticking Your Head in The Sand About Deleted Pertinent Emails Can Lead to Costly Sanctions

It is not uncommon for people to either accidentally or purposely delete e-mails, thinking that they are gone forever.  However, having an e-mail vital to a judge’s ruling in a lawsuit go missing can lead to costly and time consuming procedures needed to retrieve it.  In the case of Goldmark v. Mellina & Eichler, LLC,  the appellate division confirmed the ruling of the trial court in finding that sanctions were appropriately imposed on the defendant’s law firm for failing to take “adequate precautions to prevent the temporary disappearance of two critical e-mails.”  Sanctions in the amount of $5,502.50 were properly assessed against the firm when the trial court made Mr. Eichler’s firm (defendants' attorney) and Ms. Mellina (defendant) split the cost of $10,075 in attorneys fees, $30 in costs, and $900 for the forensic specialist.  Only the defendants' attorney appealed his portion of the sanction.

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Peck Wins By Submission; Parties Get Shot At Title Fight

Thanks for joining eLessons Learned for the latest installation on Moore v. Publicis!  As eDiscoverista predicted (don't look so surprised), plaintiffs filed a formal motion for review of Judge Peck's approval of predictive-coding protocol.  Because magistrates are afforded broad discretion in resolving discovery disputes, Judge Carter upheld Magistrate Peck's ruling as it was "well reasoned" and not erroneous or contrary to law, in accordance with Rule 72(a).  Peck's ruling met the well-reasoned standard because he considered the circumstances surrounding use of computer-assisted document review, carefully crafted a protocol that contained standards for measuring its reliability in terms of process and method, and built in levels of participation and quality assurance for both sides. Last Month on Moore v. Publicis… If you've just joined us, this landmark e-discovery dispute arose on February 8, 2012 in connection with plaintiffs' allegation that defendants, Publicis Groupe & MSL Group, engaged in systematic, company-wide gender discrimination against female employees by limiting women to entry-level positions. 

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A is for Apple Appeal: Peck’s Approval of Computer-Assisted Review is Under Review

It seems like just days ago I was celebrating Judge Peck's approval of computer-assisted review of documents to identify those responsive to discovery requests.  You too?  Well, take off your party hat -- Computer-assisted review, specifically Judge Peck's endorsement of a predictive coding protocol, is under review. **BREAKING NEWS!** Get the latest at the end of this article.** In my last post, I explained that Judge Andrew J. Peck, U.S.M.J., author of e-discovery articles and an e-discovery advocate, opined with regard to a discovery dispute in connection with Moore v. Publicis.  Therein, plaintiffs allege that defendants, Publicis Groupe & MSL Group, engaged in systematic, company-wide gender discrimination against female employees by limiting women to entry-level positions.  Counsel sought to cull discovery responsive to plaintiffs’ first round of requests from three million electronic documents using predictive coding technology.

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Guinea Pigs Finally Liberated by Peck: Computer-Assisted Review Gets Thumbs-Up and Counsel Gets A Well-Reasoned How-To

Last week brought good news for young associates, weary of large-scale document review assignments, and partners too scared to utilize computer-assisted review instead of their overworked underlings: the Southern District of New York approved the use of computer-assisted review to identify documents relevant to discovery requests.  Counsel no longer have to worry about being guinea pigs for judicial acceptance of computer-assisted review. Although attorneys have been using computer-assisted review for some time, we have been waiting for a judicial decision approving the technology – and hopefully setting forth some guidelines.  Moore v. Publicis gave Judge Andrew J. Peck, U.S.M.J., author of e-discovery articles and an e-discovery advocate, an opportunity to heed the call. 

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Time to Get Physical (Hard Drives)

On May 4, 2010, ANZ Advanced Technologies (plaintiff) was ordered to produce all hard drives and storage devices used by two of the company’s officers (Irfan Sheriff and Rakesh Vashee) for forensic analysis and ESI production.  ANZ moved to modify the order seeking to substitute forensic images of the devices for the devices themselves.  The court refused to allow the use of forensic images and mandated that ANZ turn over the physical storage devices   ANZ was forced to submit its devices for forensic analysis because of misrepresentations made about creation dates of various documents.  The court found that ANZ’s conduct cast serious doubt on the authenticity of any document it produced from the hard drives of any computers or other storage devices in the possession of Mr. Sheriff or Mr. Vashee.

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