Plaintiff Ex Parte Request for a Forensic Copy of Defendant Computer Granted

18 Nov 2013

In the case Battelle Energy Alliance, LLC v. Southfork Security, Inc., 2013 WL 5637747 (D.Idaho), the district court granted an ex parte application for a temporary restraining order (TRO) against two named defendants, an individual and his employer. Plaintiff filed a petition for breach of contract and copyright infringement regarding computer software, alleging that its former employee unlawfully copied the software and was planning to disseminate it for profit. As relief, the plaintiff sought an ex parte TRO, including disabling defendants’ website and allowing the plaintiff computer forensic expert to make a copy or image of the individual defendant’s hard drive.

After “struggling” with the issue of whether to allow a forensic copy of defendant’s hard drive on an ex parte basis with no notice, the court granted the application in part and denied in part. The court did order the defendant to turn over his computer for imaging, and ordered the copy to be delivered to the court alone. Noting that it recognized this was a “serious invasion of privacy” and “not a standard remedy,” the court allowed the imaging as this was “one of the very rare cases that justifies seizure and copying of the hard drive.” Id. at 6.

So what facts were present here to receive such an extraordinary remedy on an ex parte basis? Plaintiff presented evidence that defendants were, in their own words, hackers. Plaintiff’s computer expert testified that in cases such as this, defendants have the ability to “wipe out” a hard drive when faced with allegations of wrongdoing. As these defendants have considerable computer prowess, they had the knowledge to destroy data and leave no digital footprint. The court agreed there was high risk the defendants may destroy electronic evidence if the imaging order was not issued on an ex parte basis.

When the court had a full hearing with both parties approximately two weeks later, the district court denied the full preliminary injunction the plaintiff sought. However, the computer forensic imaging had already been performed and was in the court’s possession. The court held that it would continue to hold the images of defendant’s hard drive throughout the pendency of the action. Battelle Energy Alliance, LLC v. Southfork Security, Inc. (2013 WL 5818559 (D.Idaho)).

ILS – Plaintiff eDiscovery Experts