Electronic Discovery

Working Successfully with eDiscovery and Litigation Support Service Providers: Intro to Preparing RFPs

 

In the past several weeks, we’ve talked a lot about working with service providers.  We’ve covered what to look for when you’re evaluating vendors, how to select vendors, how to monitor vendor work and prevent problems, and how to establish and manage a preferred vendor program in a law firm. 

In the next few posts (which will conclude this vendor series), I will give you some very concrete information that will help you to generate good requests for proposals (RFPs).  A good RFP has two essential elements:

  1. Information that you provide about the case, your requirements and your expectations.  A vendor can’t provide you with good schedule and cost information if you haven’t provided good information to the vendor.
  2. Information that you request of the vendor.  You’ll have lots of questions about the vendor’s services, capabilities, flexibility, capacity, qualifications and costs.

We’re going to look at several electronic discovery services – for example, ESI processing, and ESI hosting – and we’ll walk through the information pieces that are important.  For each service, I’ll make suggestions for the information that you should provide, and I’ll make suggestions for the questions that you should ask. When the blog series is complete, you should have a good resource of information points and questions to include in your RFPs.

What type of information do you provide to a vendor in a RFP?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

eDiscovery Case Law: Discovery Violations Result in Sanctions Against Plaintiff and Counsel

Yesterday, we reported on a case with no sanctions; today, we report on a case with a different outcome.

Both the plaintiff and plaintiff’s counsel have been ordered to pay sanctions for discovery abuses in a lawsuit in Washington court that was dismissed with prejudice on June 8, 2011.

In Play Visions, Inc. v. Dollar Tree Stores, Inc., No. C09-1769 MJP (W.D. Wash. June 8, 2011), the plaintiff moved to voluntarily dismiss its case with prejudice. The defendants did not argue against dismissal but did seek sanctions from the plaintiff based on what they considered to be “a pattern of sanctionable discovery misconduct.” The court ruled that discovery abuses had occurred, and fined the plaintiff and plaintiff’s counsel $137,168.41 “jointly and severally”. The misconduct of the plaintiff, Play Visions, Inc., included:

  • Misrepresentation of Available Documents: Play Visions claimed that all relevant documents were kept in hard copy only; however, deposition of Play Visions’ CFO revealed that electronic records existed that should have been presented months earlier under discovery.
  • Falsified Expert’s Report: The plaintiff’s expert report was prepared by plaintiff’s counsel Mark Lorbiecki and only signed and “approved” by the expert. In addition, the court discovered that the plaintiff had violated the court’s protective order by revealing confidential information to the same expert witness.

As a result of these misrepresentations and discovery abuses and others, the court ruled for the defendant’s motion and demanded the plaintiff and its counsel pay sanctions:

  • The court found that Play Visions, Inc. had falsely certified that all relevant records had been saved in paper format and delayed the search and production of documents. Play Visions’ counsel was found to have been negligent in familiarizing himself with Play Visions’ document practices and to have failed in assisting his client in mandatory discovery.
  • Accordingly, the court considered every case where the defendant was forced to do extra work as a result of the plaintiff’s delays and inaccuracies, and fined Play Visions, Inc. and its counsel $137,168.41 jointly and severally, due within 15 days of the order.
  • Not finding “that the discovery violations in this case merit finding the entire case exceptional under 35 U.S.C. § 285”, the court ruled against shifting any attorney’s fees in this case.  Otherwise, the sanctions award could have been even higher!

So, what do you think? Do the discovery violations committed by Play Visions and by its attorney demand monetary sanctions on this scale? Did Play Visions actually believe that they had no relevant electronic files?  Please share any comments you might have, or let us know if you’d like to know more about a particular topic.

eDiscovery Case Law: No Sanctions Ordered for Failure to Preserve Backups

A sanctions motion has been dismissed by the U.S. District Court of Texas in a recent case involving electronic backups and email records, on the grounds that there was no duty to preserve backup tapes and no bad faith in overwriting records.

The plaintiffs in Ajay Gaalla, et al v. Citizens Medical Center, et al, No. V-10-14, 2011 WL 2115670 (S.D. Tex. May 27, 2011) had made a motion for sanctions against the defendant for alleged damage to backup tapes, including emails and other electronic documentation. On May 27, the court denied the motion for sanctions against the defendant, although new instructions on maintaining copies of disaster recovery files have been imposed in this case.

  • Plaintiffs presented the argument that the “recycling” or overwriting of disaster recovery backup tapes by the defendant, performed on a 7- or 14-day cycle after the lawsuit was filed, represented spoliation. Accordingly, the plaintiffs requested the maximum sanctions against the defendant for “failure to preserve the backup tapes.”
  • Preservation of backup tapes was not previously been discussed in this case until this motion for sanctions on grounds of data spoliation, but plaintiffs alleged that the failure to preserve backups, coupled with the failure to take snapshots of particular email accounts and “evidence that certain CMC employees had deleted emails from their account at some point in the past”, warranted harsh sanctions.
  • The defendants argued that they had no duty to preserve backups of records, since disaster recovery systems are “rarely” backed up after litigation has begun. They also presented “snapshots” taken of email accounts to demonstrate that there was no intent to destroy information and that attempts had been made to record all relevant evidence.
  • The court referred to the ruling in Zubulake v. UBS Warburg LLC, 220 F.R.D. (S.D.N.Y. 2003), which states: “[A] litigation hold does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company’s policy.” Under this standard, the court found that the defendant was within its rights to overwrite the existing backups as often as such maintenance was normally scheduled.
  • The court also ruled that, with no prior discussion of the backup tapes and “in the context of this case,” there was no cause for sanctions against the defendant, lacking evidence that the defendant acted in bad faith in recycling the tapes used to make the recovery backups.
  • However, the court did order additional discovery efforts to be undertaken in the form of “disaster recovery first of the month” email files to be preserved in their current state and that plaintiffs’ expert be allowed to search them (at defendant’s expense) as well as a “journaling” process to retain email accounts of key parties in the case.

So, what do you think? Do parties have an obligation to maintain copies of all backup tapes for litigation? Please share any comments you might have, or let us know if you’d like to know more about a particular topic.

eDiscovery Best Practices: Legal Project Management is the Same as Project Management

 

I found this article (Holy semantics Batman! There is no such thing as ‘legal project management’) which provides a good look at legal project management on the Legal IT Professionals site from Jeffrey Brandt, a previous thought leader interviewee of eDiscovery Daily.  I like this article for two reasons:

  • References to the Old Batman TV Series: Like the author, I watched every episode of the show back in the day, so I had to appreciate the analogy of putting the prefix “Bat” on everything (e.g., “Batcave”, “Batmobile”, “Shark Repellent Bat Spray”, etc.) to adding “legal” to “project management”.  It also gave me the opportunity to re-link to one of very first posts, which has a link at the bottom to a snippet from the old Batman series that always makes me laugh.
  • Clarification as to the Differentiation of ‘Legal Project Management’: According to the author, there is no differentiation.

The author notes that “The underpinnings and basic tenets of project management are 1) accomplishing a defined goal or set of goals; 2) working within a specific time line; and 3) working within a set of defined resources (most often personnel and cost). That can be applied to literally anything.”

True.  While I don’t necessarily believe that an experienced project manager can just “waltz” into managing legal-related projects with no knowledge of the legal industry and what the issues are, the best practices of project management are the same, regardless of the type of project being managed.

For example, I manage rollout coordination for our review platform, OnDemand®.  In a past life, I used to develop, but now I’m too far removed from the process to write web code, implement server configurations or fully understand all of the differences between the different versions of SQL Server.  My primary focus in the rollout management role is to coordinate communication between the developers, testers and support staff to make sure we stay on schedule for each software release to get as many of the proposed features as ready for rollout as possible.  Every time I try to get too much into the details of development, I get in trouble.  Just ask the development staff!  😉

So, what do you think?  Is there a difference between ‘legal project management’ and ‘project management’?   How much legal industry experience do you need to have to manage legal-related projects?  Please share any comments you might have or if you’d like to know more about a particular topic.

Full disclosure: I work for Trial Solutions, which provides SaaS-based eDiscovery review applications FirstPass® (for first pass review) and OnDemand® (for linear review and production).

eDiscovery Case Law: Never Mind! Judge Scheindlin Withdraws FOIA Requests Opinion

Back in February, eDiscovery Daily reported that Southern District of New York Judge Shira A. Scheindlin’s latest opinion regarding eDiscovery best practices.  In National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, 10 Civ. 3488, she ruled that the federal government must provide documents “in a usable format” when it responds to Freedom of Information Act (FOIA) requests.

In this case, the National Day Laborer Organizing Network, Center for Constitutional Rights and the Immigration Justice Clinic at the Benjamin N. Cardozo School of Law sued to require production of a wide range of documents under the Freedom of Information Act in August 2010.  In response, the government agency defendants produced documents grouped together in large files that were not searchable, for which individual documents could not be easily identified, with emails separated from their attachments.

In ruling at that time, Judge Scheindlin noted that “Once again, this Court is required to rule on an eDiscovery issue that could have been avoided had the parties had the good sense to ‘meet and confer,’ ‘cooperate’ and generally make every effort to ‘communicate’ as to the form in which ESI would be produced.”, and ruled that federal agencies must turn over documents that include “metadata,” which allows them to be searched and indexed.  Indicating that “common sense dictates” that the handling of FOIA requests should be informed by “the spirit if not the letter” of the Federal Rules of Civil Procedure, Judge Scheindlin indicated the government offered “a lame excuse” for delivering non-searchable documents.  A copy of the original opinion and order can be found here.

Now, that opinion has been withdrawn.

In a very short order withdrawing the opinion, Judge Scheindlin stated:

“This court has been informed that the parties have recently resolved their dispute regarding the form and format in which records will be produced by defendants in this Freedom of Information Act lawsuit.  In the interests of justice, this Court now believes that it would be prudent to withdraw the opinion it issued on February 7, 2011 (Docket #41).  I do so because, as subsequent submissions have shown, that decision was not based on a full and developed record.  By withdrawing the decision, it is the intent of this Court that the decision shall have no precedential value in this lawsuit or in any other lawsuit.

The Court also withdraws its Supplemental Order dated February 14, 2011 (Docket # 50).”

So, as Emily Litella would say, “Never Mind!”

So, what do you think?  What impact does the withdrawal of the opinion have on future eDiscovery cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: The Challenges of International eDiscovery

 

Litigation would be simpler if business never crossed international boundaries, but it often does. Global corporations have dozens of offices and thousands of employees scattered around the world, while smaller businesses may outsource call center work or manufacturing to China, India, or other countries that offer inexpensive labor.

As a result, eDiscovery can be complicated by international laws and the regulations regarding discovery across national borders, as well as the usual questions that affect legal discovery within the United States. Even if US courts have jurisdiction over entities from other countries and the Federal Rules of Civil Procedure apply to discovery requests, there are still several issues and challenges associated with international eDiscovery, including:

  • Location of Data: Thanks to the widespread use of cloud computing and other types of online storage, the physical location of ESI sought in eDiscovery is not always easy to pinpoint. Information transmitted electronically in an email or text message, can pass through any number of phone lines and routers, to many servers and client machines around the globe, so determining the location of a message can become virtually impossible. As a result, it can be difficult to know which nation's laws on eDiscovery should be applied, much less how to execute them.
  • Expense: Due to the complexity of requesting eDiscovery through foreign channels, and under the legal restrictions imposed by foreign governments, the cost of tracking information across international borders is much higher than eDiscovery conducted solely within the US.
  • International Law: Every nation has its own laws and regulations surrounding electronic data and discovery practices, so it's important to understand legislation in the relevant countries and, when appropriate, take measures to contact the proper authorities before moving forward. Discovery practices that are common and legal in the US can be considered criminal in some other countries, so it’s critical to have foreknowledge of the laws and rules you'll be facing.
  • Cultural Issues: Along with variations in international law comes the difficulty of rationalizing the need for eDiscovery to foreign countries who may have different views on privacy. In a country where pretrial discovery is not the norm, the request for eDiscovery may be a strange and unwelcome concept that can often result in misunderstandings and non-compliance. Explaining American laws and customs becomes a vital role of any attorney seeking international eDiscovery.

In future posts, we will be discussing international eDiscovery issues in more depth, including the Hague Convention, privacy protection laws, blocking statutes and other challenges to eDiscovery abroad.

So, what do you think? Have you experienced these same issues, or are there other challenges you've faced in international eDiscovery? Please share any comments you might have, or let us know if you'd like to know more about a particular topic.

eDiscovery Case Law: District Court Judge Affirms $1 Million Sanction to Pappas in Victor Stanley

 

One of the first posts ever published in eDiscovery Daily was this one, where defendant Mark Pappas, President of Creative Pipe, Inc., was ordered by Magistrate Judge Paul W. Grimm to  “be imprisoned for a period not to exceed two years, unless and until he pays to Plaintiff the attorney's fees and costs that will be awarded to Plaintiff as the prevailing party pursuant to Fed. R. Civ. P. 37(b)(2)(C).”.  Judge Grimm found that “Defendants…deleted, destroyed, and otherwise failed to preserve evidence; and repeatedly misrepresented the completeness of their discovery production to opposing counsel and the Court.”

Upon appeal, District Court Judge Marvin J. Garbis declined to adopt the order regarding incarceration, stating: “[T]he court does not find it appropriate to Order Defendant Pappas incarcerated for future possible failure to comply with his obligation to make payment of an amount to be determined in the course of further proceedings.”

Then, in January of this year, Judge Grimm entered an order awarding a total of $1,049,850.04 in “attorney’s fees and costs associated with all discovery that would not have been un[der]taken but for Defendants' spoliation, as well as the briefings and hearings regarding Plaintiff’s Motion for Sanctions.”  As a result, the court awarded $901,553.00 in attorney’s fees and $148,297.04 in costs, including the costs for the Plaintiff’s computer forensic consultant, finding that “Defendants’ first spoliation efforts corresponded with the beginning of litigation” and that “Defendants’ misconduct affected the entire discovery process since the commencement of this case.”

Naturally, the award was appealed.

On Tuesday, June 14, Judge Garbis affirmed Judge Grimm’s prior Report and Recommendation ordering the award.  Judge Garbis noted that “The Court’s stated standard for includible fees and costs is consistent with the purpose of designing a sanction that will ‘restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party.’  Judge Garbis discussed and rejected all of Creative Pipe’s objections as to the amount of the award, adopting Judge Grimm’s findings that all of these fees were in fact related to the discovery malfeasance.

With Creative Pipe having already paid a total of $478,409.92, a balance remains under the order of $571,440.12, which concluded with Judge Garbis stating that “Defendants shall, by July 15, 2011, pay Plaintiff…the balance due”.  No mention of Judge Grimm’s original automatic jail sanction for non-payment of the fees, though, Judge Garbis originally said he might impose jail sanctions for non-payment.

So, what do you think?  Will the defendant pay the rest?  Appeal to the Circuit Court?  Could he still go to jail?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: You Have to Be Certifiable to Work in eDiscovery

 

In any industry, it becomes important to be able to gauge the knowledge and capabilities of your service provider.  As we noted recently with regard to cloud-based Software-as-a-Service (SaaS) providers, certification builds a client's trust and confidence in the service provider.  While no industry standard certification has emerged for eDiscovery professionals – yet – some independent certification programs are in various stages of implementation to measure proficiency with eDiscovery best practices.

One program that is already in place today to verify eDiscovery competency is the Association of Certified E-Discovery Specialists® (ACEDS™), which is a relatively new organization that is gaining popularity as a member organization of eDiscovery professionals and a certification program with the Certified E-Discovery Specialist (CEDS) certification.  Last week, I spoke with Charles Intriago, President and Gregory Calpakis, Executive Director about ACEDS, how the program has evolved to this point and where it’s headed.

The group that founded ACEDS (The Intriago Group) is not new to certification programs, having previously established the Association of Certified Anti-Money Laundering Specialists (ACAMS), which, according to Intriago, has become the “world standard” certification for private and public sector professionals (including the FBI, FDIC, OCC, and IRS) for detection and prevention of money laundering.

Development of the certification program was a laborious eight month process than began last year.  Highlights of that process include:

  • Psychometric Development: ACEDS used Kryterion, an organization dedicated to construction and validation of knowledge measurement tests, to develop the certification test.  Experts in constructing exams, Kryterion uses psychometrics to create exams that are fair and unambiguous to truly measure the knowledge and ability of the test taker.
  • Expert Involvement: Twelve experts throughout the country identified over 78 eDiscovery-related job tasks.
  • Initial Survey: From this information, a 272 question survey was sent out to thousands of people for information gathering purposes, with more than 430 responses to the survey received, which defined the frequency, relevance and importance of those tasks.  Based on the responses, statisticians ranked the tasks by occupation and importance to the eDiscovery process.
  • Question Development: ACEDS then gathered some forty experts to draft four-choice, multiple choice scenario-based questions for the exam.  222 initial questions were drafted.
  • Expert Refinement of Questions: Every question, or “item,” was then reviewed by a panel of at least six experts in a series of conference calls from August to October of last year.
  • Beta Testing: The initial version of the exam was launched on November 1 of last year, with more than 50 people taking the test in one of many Kryterion test centers.  A scientific analysis was then performed of the test results to determine how each question performed and confirm that each test question was fair, clear and unambiguous.
  • End Result: The current version of the exam was finalized in mid-March of this year and is 145 questions and must be completed in four hours.  So far, more than 100 people have taken it, with approximately 75% of them passing the test and receiving the certification.

The certification exam is focused on job tasks and practical job challenges, not changing case law, which Intriago, who is a lawyer and previously a partner at a large international law firm, federal prosecutor and Congressional subcommittee chief counsel, noted applies only to the districts where the cases are decided, in the absence of a Supreme Court ruling.  When you sign up for the exam, you receive a CEDS exam preparation manual, which covers the considerable range of eDiscovery topics covered in the exam.  Benefits of certification include private and public sector employer confidence in the competence of their employees, improved job and increased salary prospects, increased credibility, chance for reduced malpractice premiums, potential promotion to new positions, as well as a potential raise in billing rates.

The price of the exam and CEDS exam preparation manual is $995 ($795 if you’re an ACEDS member – membership can range from $150 to $195 for general and government memberships).

ACEDS is committed to keeping the certification program up to date and boasts a 16 member advisory board that includes a former president of the American Bar Association, former chief justice of the Supreme Court of Florida, and key decision makers from major law firms and corporations.  The ACEDS site also has independent reporting in the News & Analysis section of the site, including this article referenced by eDiscovery Daily just last week.

For more information, go to aceds.org.

So, what do you think?  Is eDiscovery certification important to you?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: More On the Recommind Patent Controversy

 

Perhaps the most controversial story discussed in the eDiscovery community in quite some time is the controversy regarding the patent recently announced by Recommind for Predictive Coding via press release entitled, Recommind Patents Predictive Coding, issued on June 8.  I haven’t seen this much backlash against a company or individual since last summer when LeBron James’ decision to leave the Cleveland Cavaliers for the Miami Heat (and the subsequent championship-like celebration that he and his teammates conducted before the season).  How did that turn out?  😉

Since that announcement, there have been several articles and blog posts about it, including:

  • This one, from Monica Bay of Law Technology News, asking the question: “Is Recommind Blowing Smoke?”  where discussed the buzz over Recommind’s announcement;
  • This one, from Evan Koblentz (also of Law Technology News), entitled “Recommend Intends to Flex Predictive Coding Muscles” which includes responses from Catalyst and Valora Technologies;
  • This one, also from Evan Koblentz, a blog post from EDD Update, where Recommind General Counsel and Vice President Craig Carpenter acknowledges that Recommind failed to obtain a trademark for the term Predictive Coding (though Recommind is still using the ™ symbol on the term Predictive Coding onthis page);
  • Three blog posts in four days from Sharon D. Nelson of Ride the Lightning blog, which debate the enforceability of the patent and include a response from OrcaTec, noting that Recommind’s implied threat of litigation is “nothing more than an attempt to bully the market place”.

There are several other articles and blog posts regarding the topic, but if I listed them all, I’d have no room left for anything new!  Sorry that I couldn’t include them all.

I reached out to Bill Dimm, founder of Hot Neuron LLC, makers of Clustify, which clusters documents in groups for effective, expedited review and asked him his thoughts about the Recommind press release and patent.  Here are his comments:

"Recommind's press release would have been accurately titled 'Recommind Patents a Method for Predictive Coding,' but it went with the much more provocative title 'Recommind Patents Predictive Coding,' implying  that its patent covers every conceivable way of doing predictive coding.  The only way I can see that being accurate is if you DEFINE predictive coding to be exactly the procedure outlined in claim 1 of Recommind's patent.  Of course, 'predictive coding' is a relatively new term, so the definition is up for debate.  The patent itself says:

'Predictive coding refers to the capability to use a small set of coded documents (or partially coded documents) to predict document coding of a corpus.' That sure sounds like it allows for a lot of possibilities beyond the procedure in claim 1 of the patent.  The press release goes on to say: 'ONLY [emphasis is mine] Recommind's patented, iterative, computer-assisted approach can 'bend the cost curve' of document review.'  Really?  So, Recommind has the ONLY product in the industry that works?  A few of us disagree.  Even clustering, which Recommind claims does not qualify as predictive coding will bend the cost curve because the efficiency boost it provides increases with the size of the document set.

Moving on from the press release to the patent itself, I would recommend reading claim 1 if you are interested in such things.  It is the most general method that the USPTO allowed Recommind to claim –  the other claims are all dependent claims that describe more specific embodiments of claim 1, presumably so that Recommind would have a leg left to stand on if prior art was found to invalidate claim 1.  Claim 1 describes a procedure for predictive coding that involves quite a few steps.  It is my understanding (I am NOT a lawyer) that the patent is irrelevant for any predictive coding procedure that does not include every single one of the steps listed in claim 1.  Since claim 1 includes things like identification cycles, rolling loads, and random sampling, it seems unlikely that existing products would accidentally infringe on the patent.

As far as Clustify is concerned, Recommind's patent is irrelevant since our procedure for predictive coding is different.  In fact, I explained in a presentation at a recent conference why random sampling is a very inefficient approach (something that has been known for decades in other fields), so I wouldn't even be tempted to follow Recommind's procedure."

So, what do you think?  Will the Recommind predictive coding patent allow them to rule predictive coding?  Or only their specific approach?  Will LeBron James ever win a championship?  Please share any comments you might have or if you’d like to know more about a particular topic.

Full disclosure: Hot Neuron is a partner of Trial Solutions, which has used their product, Clustify, in various client projects.

eDiscovery Case Law: Downloading Confidential Information Leads to Motion to Compel Production

The North Dakota District Court has recently decided in favor of a motion to compel production of electronic evidence, requiring imaging of computer hard drives, in a case involving the possible electronic theft of trade secrets.

In Weatherford U.S., L.P. v. Chase Innis and Noble Casings Inc., No. 4:09-cv-061, 2011 WL 2174045 (D.N.D. June 2, 2011), the court ruled to allow the plaintiff to select and hire a forensic expert at its own expense to conduct imaging of the defendants’ hard drives. The purpose of this investigation was to discern whether or not confidential data that was downloaded from the plaintiff’s computers was, in fact, used in the building of the defendants’ own oil services firm.

Although the judge noted that courts are generally “cautious” in authorizing such hard drive imaging, this motion was substantiated by the defendant, Innis’s, “acknowledgment that he downloaded [plaintiff’s] files to a thumb drive without permission.” The court believed that circumstances of the case warranted further investigation into the defendant’s computer history:

  • The plaintiff, Weatherford US LP, had previously alleged that Chance Innis, a former employee, had downloaded confidential and proprietary information and used it to his advantage in starting his own competing company, Noble Casing Inc.
  • Innis had admitted to returning to Weatherford US offices late in the evening of the day he was terminated and downloading files onto a thumb drive without permission. Two weeks later, he launched his own competing oil services company, the co-defendant in this case, Noble Casing Inc. However, Innis maintains that he did not later access the files stored on his thumb drive and never used them in the process of starting his own company.
  • Contrary to these assertions, forensic examination of the thumb drive showed that the files were later accessed; whether or not they were instrumental in the startup of Noble Casing Inc. remains in question.
  • The plaintiff requested access to the defendant’s computers in the pursuit of previously subpoenaed documents, proposing that they select, hire, and pay for the services of a forensic investigator to image the defendants’ hard drives.
  • The defendants objected, proposing instead that an expert be chosen in agreement by all parties.
  • The court ruled in favor of the plaintiff’s motion in this instance, agreeing that all materials imaged will be shown to the defendant to screen for privilege before being shared with the plaintiff.
  • The court maintained that it is not unusual for imaging of hard drives to be allowed by the court in cases such as this, “particularly in cases where trade secrets and electronic evidence are both involved.”

So, what do you think?  Do you agree that Weatherford should have been allowed to examine images of the defendants’ hard drives, or should Innis’ privacy and that of his company have been protected?  Please share any comments you might have or if you’d like to know more about a particular topic.