Forensic Examination – Electronic Discovery Law

Jordan Khan Music Co. v. Taglioli (E.D. Tex. 2022)

May 12 2022

Key Insight: Plaintiffs moved to compel the forensic examination of defendants’ devices and data storage for imaging and inspection, along with their licenses for all software used for their businesses. Plaintiffs claimed the discovery was relevant to their RICO claim, alleging continued criminal copyright infringement of unlicensed software as a predicate act. Defendants claimed forensic examination would be vastly disproportionate to the issue. The court agreed with defendants and denied plaintiffs’ motion to compel, finding the forensic examination would allow plaintiffs to become privy to information beyond the scope of audio software and they could engage in the discovery process in a less invasive but still worthwhile manner. Accordingly, the court ordered that defendant revise their boilerplate objections and respond to plaintiffs discovery requests to identify computers, storage mediums and software used in Defendants’ business within a specific time frame.

Nature of Case: Trademark Infringement

Electronic Data Involved: Electronic Devices, Computers, Software

Case Summary

Aminov v. Berkshire Hathaway Guard Insurance Companies (E.D.N.Y. 2022)

Mar 03 2022

Key Insight: Defendant moved to compel plaintiff to produce for forensic examination the cell phone that recorded videos produced by Plaintiff. The court denied the motion, noting there must be good cause to order forensic examination when a party has already produced the electronic information sought and in native format. Defendant alleges there was a reason to believe metadata for the video was altered based on counsel’s own analysis using a free online metadata tool. After investigating the online metadata tool, including uploading a court document that did not contain any metadata, the court found that the tool shows an automatic message for every file that is uploaded to the website indicating that metadata “could have been changed or deleted” – something court noted “is hardly the thing on which one should base a motion to compel.”

Nature of Case: Breach of Contract

Electronic Data Involved: Cell phone

Case Summary

Krishnan v. Cambia Health Solutions, Inc. (W.D. Wash. 2021)

Jun 23 2021

Key Insight: Defendant cannot be compelled to produce text messages from employees’ personal cell phones because they did not have possession, custody, or control of the devices. An employer has possession, custody, or control of a cell phone when the employer issued the cell phone, the cell phone is used for business purposes, and the employer has a legal right to obtain communications from the cell phone.

An email does not become privileged simply by including counsel as a recipient to an email. If the email was not sent with the purpose of obtaining legal advice, it is not privileged.

An independent forensic examination of electronic devices for electronic communications is appropriate when a party intentionally delays or withholds relevant and discoverable communications.

Nature of Case: Wrongful Termination, Employment Law

Electronic Data Involved: Text Messages, Email

Case Summary

Measured Wealth Private Client, Grp., LLC v. Foster (S.D. Fla., Mar. 2021)

Key Insight: Plaintiff filed a Motion to Compel Forensic Examination to permit inspection of the Defendant’s cellular phone. Specifically, the Plaintiff sought iMessages and text messages for a 12-month period. The Defendant asserted that the temporal scope of the messages sought was too broad, the messages could be obtained from other sources, and the examination of the phone for such a long time period was a “mere fishing expedition”.

The Court directed that the forensic examination proceed with an agreed upon independent expert to examine a forensic image of the phone with the Plaintiff paying for the initial fees and costs for doing so. In such an image was not feasible, then the expert was to acquire as much data as possible from the device to allow for the recovery of the iMessages and text messages. The Court noted that the Defendant had been “obstructionist” in responding to Plaintiff’s initial discovery requests (which sought the above described messages), and expressed concern about the Defendant providing complete production of all requested documents in the litigation.

Nature of Case: Employment

Electronic Data Involved: Text Messages, iMessages, Cellular Phone

Case Summary

Liadis v. Suburban Mobility Authority for Regional Transportation (Mich. Ct. App. January 28, 2021)

Jan 28 2021

Key Insight: The trial court ordered plaintiff to produce her laptops to defendant’s computer forensic expert. In the days prior to turning over the laptops, about 41,000 unidentified files were deleted by a computer program called “CCleaner.” Defendant moved to dismiss plaintiff’s complaint based on spoliation and discovery violations and the trial court denied defendant’s motion. The Court of Appeals agreed with the trial court and found that plaintiff did not intentionally destroy evidence and it was unlikely that any evidence was in fact lost. Both sides’ forensic experts found the CCleaner was installed before the complaint was filed and was set to run automatically. The court was open to a lesser sanction than dismissal such as an adverse jury instruction should defendant request one.

Nature of Case: Personal Injury

Electronic Data Involved: Laptop files

Case Summary

Tag:Forensic Examination