Forensic Imaging Request

Forensic Imaging Request Denied in RICO Case: eDiscovery Case Law

In Jordan Khan Music Co. v. Taglioli, No. 4:21-CV-00045 (E.D. Tex. May 12, 2022), Texas District Judge Amos L. Mazzant, stating “the request is massively disproportionate to the issues”, denied the plaintiffs’ forensic imaging request of defendant devices. He did, however, order the defendants to “forego their boilerplate responses and objections and provide detailed responses to the interrogatories they have been dodging at every turn.”

Case Discussion

In this case, the plaintiffs asserted civil Racketeer Influenced and Corrupt Organizations (“RICO”) claims against the defendants, alleging continued criminal copyright infringement of unlicensed software as a predicate act (among other things). On March 31, 2022, the Court held a discovery conference to hear arguments pertaining to the plaintiffs’ requests that the defendants make their devices and means of data storage available for imaging and inspection, along with details of their licenses for all software used for their business, asserting that this imaging was crucial to their RICO claims. Defendants responded that the discovery request was far too invasive—that turning over devices and data would produce information beyond the scope of any claims in this case. The Court asked Plaintiffs to file a motion to compel, which they filed on April 12 to formalize their forensic imaging request, followed by a response from the defendants, a reply from the plaintiffs and a sur-reply from the defendants.

The plaintiffs asserted that their forensic imaging request was the best means to obtain critical information for the RICO claims, and that there was no effective alternative. The defendants responded that forensic examination would be vastly disproportionate to the issue, asserting that compelling the discovery would be no different than a ticket for the plaintiffs to fish their way through “every computer, laptop and memory storage device used by Defendants and their affiliates … for every single program and application, both personal and business, no matter how remote to Plaintiffs’ RICO claim.” The defendants also argued that the Court does not have subject matter jurisdiction over the RICO claim because the plaintiffs did not have RICO standing.

Judge’s Ruling

With regard to RICO standing, Judge Mazzant stated: “As an initial matter, this Court undoubtedly has subject matter jurisdiction over the claims in this case. RICO ‘standing’ is not Article III standing—it does not affect the power of the Court to hear the case. The Fifth Circuit has stated that, ‘although parties and courts often refer[ ] to ‘RICO Act standing’ or ‘statutory standing,’ courts ‘should avoid using that term’ since it is not a question that implicates subject-matter jurisdiction.’… That said, Defendants raise important issues regarding RICO standing that the Court would consider if raised in the proper context. A response to a motion to compel is not the proper context. Thus, the Court will presume that Plaintiffs have RICO standing for the purposes of the matter currently before the Court.”

However, Judge Mazzant denied the plaintiffs’ forensic imaging request, stating: “Even assuming Plaintiffs have RICO standing, the Court must deny the motion to compel. Though Plaintiffs attempt to simplify their request with straightforward language, the reality is that the request is massively disproportionate to the issues…Plaintiffs hope that through the forensic examination, they will find evidence of unlicensed and cracked software that Defendants used to skirt paying licensing fees. They may very well find such evidence through the examinations. But, as Defendants assert, Plaintiffs will also become privy to information far beyond the scope of audio software, ‘including programs and applications such as personal hospital health portal applications, personal banking applications, dating apps and other personal sites, Super Mario Kart, Photoshop, Solitaire and other purely non-business programs’…This does not meet the proportionate standard under Rule 26.”

Judge Mazzant did acknowledge the plaintiffs’ previous attempts to obtain related information, stating: “Plaintiffs seem to have hoped at one point that other discovery measures might produce information relevant to the RICO claim but gave up such pursuits when Defendants continued to send boilerplate objections to Plaintiffs’ interrogatories. Plaintiffs themselves stated that ‘Defendants, through repeated discovery misconduct, have avoided Plaintiffs’ attempts at less-intrusive means of discovering the information sought’.”

Continuing, he said: “In the second set of interrogatories, Plaintiffs requested that Defendants, among other things, identify computers, storage mediums, and software used in Defendants’ business within a specific time frame. Defendants objected outright. This information is directly relevant to the RICO claim because it could uncover information regarding copyrighted software and the timeframe for which any alleged infringement took place. The Court finds this method of discovery is proportional to the issues, and it is far less invasive than a forensic examination of all of Defendants’ devices. The Court, therefore, expects Defendants to forego their boilerplate responses and objections and provide detailed responses to the interrogatories they have been dodging at every turn.”

So, what do you think? Are you surprised that the Court denied the forensic imaging request when their earlier requests were met with boilerplate objections?  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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