What is the Procedure to Obtain a Forensic Imaging Order in eDiscovery?
In the Ohio state court case Fasteners for Retail, Inc. v. DeJohn, et al., No. 100333(Ct. App. Ohio April 24, 2014) the appeals court considered whether the trial court’s order to compel forensic imaging of Defendant’s computer was proper. The court reviewed the two-part procedure to determine if forensic imaging was warranted in the jurisdiction.
1. The trial court must weigh the interests of both parties to obtain the data against privacy concerns;
2. The trial court must determine a protective protocol to be sure that the forensic imaging is not unduly intrusive. Bennett v. Martin, 928 N.E.2d 763 (10th District 2009).
In its appeal, Defendant argued the trial court did not consider the first factor in the Bennett test, as it neither considered the privacy and confidentiality interests nor did it establish that Defendants had been non-compliant in discovery. The appeals court agreed, pointing out that Plaintiff was non-compliant in discovery and the record did not establish that the data was unlawfully withheld or unavailable from other sources.
Defendant also argued there was no protective protocol assigned as required by the second prong of the Bennett test. One way would be to have an independent third party computer forensics expert be the person to make and analyze the forensic mirror image. Then that expert would turn over the responsive documents to Defendant, who could review for privilege and produce the non-privileged files and privilege log to Plaintiff. As the trial court offered no protocol for the second prong and gave Plaintiff “unfettered” access to the electronic devices, the forensic imaging order as written was an abuse of discretion.
Did you know? Recently, computer forensics experts uncovered previously-unseen digital images from Andy Warhol off his 1985 floppy disks.