Special Master to Evaluate Authenticity of Electronic Evidence Which Plaintiff Claimed Was Fabricated

Inventory Locator Serv. LLC v. Partsbase, Inc., 2006 WL 1646091 (W.D. Tenn. June 14, 2006)

In this case, plaintiff brought claims under the Computer Fraud and Abuse Act and the Electronic Communications Privacy Act, alleging that defendant obtained unlawful access to plaintiff’s computerized database. Defendant counterclaimed, alleging similar conduct by plaintiff. Plaintiff moved to strike the counterclaim and for the appointment of a special master under Rule 53(b) of the Federal Rules of Civil Procedure to determine whether defendant fabricated evidence. Plaintiff offered to pay the initial costs associated with the appointment of a special master.

In support of the motion, plaintiff stated that its computer forensic expert had concluded that logs were altered to reflect incursions into defendant’s system by plaintiff that never occurred, which would constitute a fraud upon the court. Plaintiff contended that analyzing the electronic server log evidence that defendant offered to support its claims required specialized knowledge of computers, software, and computer forensic techniques, making the appointment of a special master appropriate. Because this matter was set for trial on July 17, 2006, plaintiff requested that the special master be appointed to review the evidence and make recommendations no later than June 23, 2006 or that the court carry this motion until the conclusion of the trial on the merits and consider the appointment of a special master post-trial.

Defendant opposed the motion, arguing that plaintiff’s expert made numerous mistakes in deriving his conclusions and that defendant’s expert refuted the findings.

The court concluded that the findings of a special master would materially assist the court in evaluating the charges of fabricated evidence. It explained:

Under Rule 53(a) the appointment of a special master is the exception and not the rule. Medtronic v. Michelson, 229 F.3d 550, 559 (W.D. Tenn 2003.) Rarely does a party allege that another party has fabricated evidence and submitted it to a court of law. When such allegations are made and are supported by expert analysis, this court has an obligation to pursue them at the earliest possible opportunity. Nothing is more basic to the administration of justice then the integrity of the judicial process. Because of the enormous amount of data and the gravity of ILS’s allegations, the court concludes that the prompt appointment of a special master is warranted.

The court ruled that the special master would determine the authenticity of the server logs defendant had submitted to support its claims, and that plaintiff would bear the initial cost of the special master’s services. The court ordered the parties to agree upon a neutral computer expert within seven days; if they could not agree, each side was to submit the names of two prospective experts along with a summary of the expert’s qualifications, the expert’s fee structure, and an itemized estimate for the expert’s services. The court would then select a special master from among the four names submitted. It further ruled that, after selection of the special master, all communications between either party and the special master would need to be copied to the other party. Finally, the court directed the parties to address an appropriate deadline by which the special master should submit her recommendations and whether a continuation of the trial was warranted.

The court denied the motion to strike as premature.