Computer Forensics Docket Sheet

In a case involving breach-of-contract claims, the court affirmed the magistrate judge's order declaring that certain e-mail exchanges between the plaintiffs and counsel were discoverable and not protected by attorney-client privilege. Following plaintiffs' termination of employment, the defendant recovered deleted e-mail ex-changes on two company-owned laptops. The court found that the plaintiffs had waived privilege claims to e-mails sent prior to the defendant's acquisition of the plaintiffs' business because the plaintiffs had not taken steps to 'protect or segregate' those e-mails from the defendant's systems. As to other e-mails sent and received after the acquisition, the court found that because the plaintiffs had received notice of the defendant's e-mail monitoring policy, the plaintiffs waived any privilege claims by using the defendant's e-mail system to send and receive those communications. Kaufman v. SunGard Inv. Sys., 2006 WL 1307882 (D.N.J. May 10, 2006).

In a copyright-infringement case, the plaintiff accused the defendant of unlawfully downloading and distributing copyrighted materials through a peer-to-peer, online media-distribution system. After the defendant failed to provide electronic copies of her computer's desktop and registry files in response to a production request, the court ordered the defendant to bring the computer to an evidentiary hearing. At the hearing, the court permitted the plaintiff's forensic technician to make a mirror image of the defendant's computer in the court's chambers. Issuing a protective order, the court restricted the plaintiff from using or disclosing any electronic information obtained from the computer that was unrelated to the case. The court also reserved the right to issue Rule 37 sanctions against the defendant after having the opportunity to consider the defendant's computer skills and the reasonableness of her efforts to comply with discovery in light of them. Warner Bros. Records, Inc. v. Souther, 2006 WL 1549689 (W.D.N.C. June 1, 2006).

In a breach-of-contract suit, the plaintiff alleged that the defendant, while in plaintiff's employ, provided a former employee access to the plaintiff's computer system so that the former employee could obtain trade secrets and confidential information. In order to preserve potentially relevant e-mail evidence on the defendant's personal computer, the plaintiff filed an emergency motion for expedited discovery. The plaintiff offered to pay for a computer expert to make a mirror image of the defendant's computer drive and stipulated that the contents could be sealed until further court order. In granting the emergency motion, the court found a 'substantial probability' that relevant electronic evidence, including e-mails and instant messages, 'could be made less accessible to the parties merely by the defendant's normal course of computer use, regardless of his intentions and motive.' Citing the Sedona Principles, the court granted the emergency order, finding that in certain circumstances, preservation orders may aid the discovery process by promoting efficiency and by specifying the parties' preservation obligations. The court requested that the defendant's lawyers screen the computer data for privacy, privilege and relevancy issues before disclosing the contents to the plaintiffs. Quotient, Inc. v. Toon, 2005 WL 400-6493 (Md. Cir. Ct. Dec. 23, 2005).