Yes, it’s an eDiscovery case law post, but with a twist! This time, I’m covering a post by Forensic Discovery which discusses the case Delta T, LLC v. Williams, No. 1:20-cv-559 (S.D. Ohio Jan. 12, 2021), where Ohio District Judge Matthew W. McFarland granted the plaintiff’s motion to compel in large part, granting their motion as to all interrogatories and document requests in dispute, as well as a limited third-party forensic inspection of the defendants’ electronic devices, denying only the plaintiff’s request to compel Defendants to direct their mobile phone and internet carriers to provide the independent forensic examiner access to stored records of Defendants’ communications.
Forensic Discovery’s cleverly titled post – We’re Big Fans of This Case Law Ruling – discusses three terrific lessons learned as to how the plaintiff made and justified the forensic inspection request. It also mentions the Court Defined Procedure for conducting the forensic inspection, which Judge McFarland laid out in a terrific manner, with specific responsibilities and timelines for each party to follow (below). Check out their post here, the case ruling (via the link above) and also Kelly Twigger’s coverage of the case a few weeks ago for the ACEDS #caseoftheweek broadcast!
Here is Judge McFarland’s instructed procedure for the forensic inspection:
- Counsel for BAF, Williams, and Vortikul shall meet and confer regarding the designation of an independent forensic examiner (“Examiner”). They shall designate an Examiner within 30 days of this Order. If the parties cannot agree on an Examiner, each party shall submit its recommendation for an Examiner to the Court with a 1-page memorandum, and the Court shall decide.
- The Examiner, and any supporting staff, shall sign a confidentiality order. To the extent the Examiner and any additional staff have direct or indirect access to information protected by attorney-client privilege, such disclosure shall not result in any waiver of that privilege.
- Defendants Williams and Vortikul shall make all responsive computer equipment available, including applicable personal devices, to the Examiner for inspection, copying, and imaging at a mutually agreeable and non-disruptive time, but no later than February 26, 2021. Defendants shall provide to BAF a detailed report of all equipment produced for imaging by the same date.
- The Examiner shall then retrieve responsive documents and material by performing a search limited to the specified search terms found at ECF Document 36-15 at Page ID 1564-69 (Exhibit 14 to BAF’s motion to compel, Doc. 36).
- BAF shall pay for the Examiner’s time and services.
- Defendants Williams and Vortikul shall review the responsive files for privilege, create a privilege log, and produce the non-privileged files and the privilege log to BAF. The deadline to produce shall be within 28 days after the examination or March 26, 2021, whichever is sooner. If BAF objects to Defendants’ withholding of any document as privileged or otherwise, the parties shall meet and confer in good faith to resolve their differences. If they fail to resolve the matter between themselves, they shall follow the procedures outlined in the undersigned district judge’s standing order regarding discovery disputes.
- Defendants are not required, at this time, to authorize their mobile phone or internet carriers to provide the Examiner with access to Defendants’ stored records.
So, what do you think of the proposed forensic inspection procedure above? Please share any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.
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