Electronic Discovery – Page 4 – Attorney Evan Brown

October 27, 2006 Electronic Discovery, Evidence, Litigation, Privacy

Parties must use neutral forensics examiner in file-sharing case

Case highlights important privacy interests in electronic discovery dispute.

From Ray Beckerman, we learn of the U.S. District Court for the Eastern District of Texas’s decision on a motion to compel discovery filed by the recording industry against an accused file-sharer. While the defendant will have to submit her hard drive for forensic examination to see whether she had any copyrighted sound recordings stored on it, she will not have to turn it over to the recording industry’s forensic expert.

Instead, seeking to “balance the legitimate interests of both sides,” the court ordered the parties to select a neutral computer forensics expert to conduct the inspection. Such an approach, the court found, would protect the disclosure of the defendant’s personal information, such as personal correspondence, household financial matters, school homework, and perhaps attorney-client privileged information.

Although in theory this sounds like a reasonable approach to protect the confidentiality of the defendant’s information, one could be troubled by a particular part of the court’s decision. The order states that “the Plaintiffs shall have the right to suggest hard drive search methodologies to the neutral expert and the expert shall make every effort to utilize those methodologies.”

But there is nothing in the order giving the defendant the right or opportunity to object to those methodologies. With an obligation to “make every effort” to comply with the suggestions of the plaintiffs, just how neutral is that forensic examiner really going to be?

Sony BMG Music Entertainment et al. v. Arellanes, No. 05-CV-328 (E.D. Tex., October 27, 2006).

August 25, 2006 Copyright, Electronic Discovery, Litigation

Evidence-destroying defendant severely sanctioned in P2P file-sharing case

In the case of Arista Records v. Tschirhart, the U.S. District Court for the Western District of Texas has shown little mercy on a defendant accused by record companies of illegal file-sharing.

Knowing that a court order was in place requiring her to turn over her hard drive to be copied, the defendant allegedly used “wiping” software in an attempt to destroy all evidence of her illegal P2P file sharing. In response, the plaintiff record companies moved, pursuant to Fed. R. Civ. P. 37(b), for the most severe form of sanctions against the defendant – entry of default against her. The court granted the plaintiffs’ motion, and provided them with 30 days to submit a proposed order spelling out their damages.

Given that the record companies’ expert opined that the defendant had downloaded over 200 sound recordings during 2005, those requested damages will probably be substantial. Statutory damages under the Copyright Act can go as high as $150,000 per work infringed, in the most egregious cases.

In reaching its decision to enter default against the defendant, the court exercised its inherent power to do so, making a note of its obligation to act with “restraint and discretion.” It found that the defendant had acted in bad faith. That bad faith was exacerbated – and the default was further warranted – by the fact that the defendant herself was responsible for the destruction of evidence, that the deletion of the files destroyed the strongest evidence relevant to the plaintiff’s infringement claims, and that less drastic sanctions would not be appropriate.

Not only was the sanction intended to dissuade the plaintiff from destroying evidence in the future, it was intended to make an example out of her. Merely awarding the plaintiffs their attorney’s fees or giving the jury an adverse inference instruction at trial would not have been enough to remedy the situation. Given the defendant’s “blatant contempt” for the court and a “fundamental disregard for the judicial process,” only default would be an adequate punishment and deterrent to others considering similar conduct.

[Hat tip to Techdirt for posting on this case.]

Arista Records, LLC, v. Tschirhart, No. 05-372 (W.D. Tex., August 23, 2006).

September 28, 2005 Electronic Discovery, Privacy

Florida appellate court issues ruling on electronic discovery

Administrative law judge’s discovery order permitting “access to literally everything” on petitioner’s computer did not adequately protect against disclosure of confidential and privileged information.

After being suspended from his job as a school teacher, petitioner Menke was placed under investigation for alleged misconduct. In a formal proceeding against Menke before Florida’s Division of Administrative Hearings, the school board sought discovery of all of the computers in Menke’s household. The board requested that its retained computer expert be allowed to inspect Menke’s computers in a laboratory, so that it could search for improper instant messages.

Menke objected to the discovery request on the grounds that such a wholesale inspection of his computers would violate his Fifth Amendment right and his right of privacy, and would reveal privileged communications with his wife, attorneys, accountants, clergy, or doctors.

Over Menke’s objections, the administrative law judge granted the motion to compel production of the computers for inspection. Menke sought review with the Florida appellate court, which quashed the discovery order.

The appellate court looked to the only other Florida appellate court decision relating to electronic discovery, Strasser v. Yalamanchi, 669 So.2d 1142 (Fla.App.1996), noting that the relevant rules of procedure were broad enough to encompass requests to examine computer hard drives, but only in limited and strictly controlled circumstances. The court concluded that permitting unlimited access to everything on a computer would constitute irreparable harm, because it would expose confidential and privileged information to the opposing party.

The court continued by noting that in cases where there is a need for access to electronically stored information, searching for such data should first be done by the party responding to the discovery request, unless there is evidence of data destruction designed to prevent the discovery of relevant evidence.

In this case, there was no evidence of any destruction of evidence or thwarting of discovery. The court sent the matter back to the administrative body, allowing the school board to request that Menke produce relevant, non-privileged, information. In the court’s words, Menke was not required to provide unfettered access to the entire “electronic filing cabinet” that was his computers.

Menke v. Broward County School Bd., — So.2d —-, 2005 WL 2373923 (Fla.App., Sep 28, 2005).

May 26, 2005 Computer Crime, Electronic Discovery, Privacy

Presence of encryption software relevant evidence in criminal conviction

Anyone who tracks court decisions related to the Internet knows that criminal cases involving improper conduct with a minor are quite common, and generally have little or no legal significance. A recent decision of the Court of Appeals of Minnesota in the case of State v. Levie, however, is worth noting in that the decision affirmed a controversial evidentiary ruling. The trial court judge had allowed into evidence the mere fact that the defendant had the encryption software PGP installed on his computer. The judge had determined that the presence of the software was relevant evidence to show that the defendant had engaged in improper conduct with a minor.

The decision is puzzling for a couple of different reasons. The forensic report prepared by the police revealed that nothing on the defendant’s computer had been encrypted. Furthermore, the police officer who prepared the forensic report admitted that PGP “may be included on every Macintosh that comes out today.” Given the evidence of widespread use of PGP and the lack of any evidence to show the defendant had used the encryption software in connection with any crime, one is left to wonder why the court would find it, as it stated, “at least somewhat relevant.”

Apparently, the court believed that the mere ability to conceal wrongdoing showed an actual intent to commit a crime. But such a conclusion is troubling. How is the mere presence of PGP on the defendant’s computer any different than him having a lock on his front door? Would the court have drawn the same conclusion regarding relevancy if the defendant was on trial for something less heinous, say, securities fraud?

[More coverage here.]

State v. Levie, 2005 Minn. App. LEXIS 476 (May 3, 2005).