Plaintiff Requests for Computer Mirror Imaging Orders

Courts Support Plaintiff Forensic Imaging When Presented with Risk of Evidence Spoliation

Forensic examination and computer mirror imaging take exact copies of all information contained on the hard drives of computers, retrieving not only documents, but also computer data on internet and program activity, use of removable flash drives, printing and file copying. The hard drive mirror image can reveal fingerprints of efforts to intentionally delete or destroy data on a computer, and demonstrate intentional efforts to destroy evidence which could lead to spoliation claims.

Though forensic examination of hard drive copies provide a wealth of information, defendants regularly oppose production as overly broad, burdensome and collecting privileged information. To refute these claims, plaintiffs must show the requests are likely to produce relevant information or that the defendants have a history of withholding or destroying evidence. As current case law shows, forensic examination and computer mirror imaging requests succeed when plaintiffs describe how defendants did not comply with discovery obligations, have a history of destroying evidence, and requested computer copies which should contain relevant evidence.

Current Case Law Involving Computer Forensic Mirror Imaging Requests

• Nola Spice Designs, LLC v. Haydel Enterprises, Inc.[1] The court denied defendant’s very broad ESI requests, noting exhaustive forensic examination and computer mirror imaging require a discovery obligation default; plaintiff had not defaulted on discovery obligations.
• Radzick, et al. v. Connecticut Children’s Medical Center, et al.[2] Court provides sufficient protections for defendant information retrieved in forensic examination and computer mirror imaging.
• United Factory Furniture v. Alterwitz.[3] Plaintiff alleged defendants were destroying evidence and requested forensic examination and computer mirror imaging; the court allowed a mirror imaging forensic copy held under protective order, as factors alleged against the defendants outweigh the burden to the defendants.
• Teledyne Instruments, Inc. v. Cairns, et al.[4] Inconsistencies in metadata were legitimate, and absent a show that additional discovery would uncover relevant evidence, plaintiff could not get additional forensic examination and computer mirror imaging; if plaintiff could demonstrate additional discovery would recover relevant evidence the court’s decision could differ.
• Battelle Energy Alliance, LLC v. Southfork Security, Inc.[5] Plaintiff alleged defendants, self-identified hackers, would destroy computer evidence if given notice of the lawsuit; court allowed seizure, forensic examination and computer mirror imaging of defendant’s computers based on the hacker self-identification.

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