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Is Your Data Wide Open to Your Opponent?

Nolan M. Goldberg Information technology departments of sophisticated organizations are already aware that each party to a litigation in the United States is obligated to collect its own discoverable electronic information to be produced to the opposing party. A recent change to Federal Rule of Civil Procedure 34(a) makes clear that this honor system is not without limitation, and in certain situations, pursuant to a court order, a requesting party may be permitted to collect an opponent's electronic data, and associated metadata, itself. Such inspections, as they are known, can range from creating an image of a single computer to a full forensic examination of a network. The assistance of an organization's IT personnel in navigating these situations is critical, first in providing the technical guidance necessary to oppose the request, and then in assisting in conducting the inspection if the request is granted. ... Another way to oppose a request to inspect is to show the willingness and capability to run the requested searches, typically using outside experts in conjunction with internal IT personnel. While courts have disagreed on this issue, at least one court has denied a request to inspect on this basis, noting that the responding party had agreed to have its own expert perform the search, and the court had "no basis to question this representation." Calyon v. Mizuho Sec. USA Inc., No. 07CIV02241RODF, 2007 WL 1468889, at *3 (S.D.N.Y. May 18, 2007). However, see Cenveo, 2007 WL 442387, at *2 (allowing inspection of hard drives of ex-employees who were alleged to have misappropriated trade secrets despite the defendant's willingness to conduct its own inspection and production because of "the close relationship between plaintiff's claims and defendants' computer equipment").

Full post as published by The Trade Secrets Vault on March 12, 2008 (boomark / email).