When Is Forensic Imaging Not Warranted?
Forensic imagining typically entails preserving the contents of a custodian hard drive or server. Expert computer forensic services can also be complex as far as sensitive information is concerned. This begs the question of when does forensic imaging become an unwarranted option in the discovery process. The court answered this question in Boston Scientific Corporation v. Dongchul Lee Case Nos. 5:14-mc-80188-BLF-PSG, 1:13-cv-13156-DJC (N.D. Cal. August 4, 2014).
Dongchul Lee (Lee) was hired by Boston Scientific Corporation (BSC) as a senior biomedical system engineer, and his work explored low frequency spinal cord stimulation (“SCS”) devices that helped to mask pain from paresthesia.
While at BSC, Lee entered into a confidentiality agreement. After resigning, Lee went to work for Nevro the following month. Lee’s work at Nevro involved high frequency SCS devices. BCS sued Lee, but not Nevro, alleging that he had breached his confidentiality agreement and trade secret law.
BCS served a subpoena on Nevro, and after a meet-and-confer, requested production and a complete forensic image of:
1. Lee’s first laptop that was assigned to him at the start of his Nevro employment and used to perform job duties and communicate with attorneys; and
2. Lee’s second laptop from Nevro, assigned as a replacement once the first laptop was segregated due to litigation, and which was used for attorney communication and confidential work-related matters.
Nevro first contended that it has already produced information about the contents of the first laptop in the form of listing reports that disclosed extensive metadata, USB reports, and web browsing history reports. Secondly, Nevro stated that the second laptop was used by other employees, including the former director of compliance, who handled very sensitive issues.
Nevro even went as far as offering to have an independent vendor review a full forensic image of only the first laptop, including any deleted files, to search for pertinent information. However, BSC refused this offer.
The court stated that there is no doubt discoverable information exists on the two laptops, but:
1. Because Lee only began using the second laptop at issue in this case after the litigation began, there is no question that the laptop is not discoverable;
2. Demanding the complete forensic image of laptops belonging to a direct competitor is too much;
3. Complete forensic images would disclose privileged communications related to the litigation as well as irrelevant trade secrets from a nonparty-competitor; and
4. Forensic imaging is a highly invasive procedure that engenders the risk of unanticipated, accidental disclosure of crown jewels. This threat is particularly pronounced in competitor-competitor litigation, like this one.
As such, the court ruled that the risks attached to forensic imagining were simply too great to permit such unchecked discovery.