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Editor Bio
Gregg Mayer is a journalist and lawyer with a keen interest in the rapidly evolving world of e-Discovery. Gregg has published numerous articles, including writing for law journals and the American Bar Association. Gregg served as editor-in-chief of the Mississippi Law Journal. Before practicing law, Gregg worked as a newspaper reporter for six years.
New Opinion Illustrates How Quickly ESI Issues May Proceed in Court
Posted by Gregg Mayer on Wednesday, April 2nd, 2008
In a court opinion from March, a federal magistrate ordered an expedited forensic imaging of computers relevant to the litigation. In fact, within two days of the March 17 order, the computer servers and other electronic storage devices, including one employee’s laptop, were to be made available to a forensic examiner to make mirror images of the devices.
In the case, XPEL Technologies Corp. v. American Filter Film Distributors, XPEL worried that electronically stored information (“ESI”) could be altered or destroyed just by the day-to-day activities of the defendants’ computer use unless an expedited order permitted an immediate imaging of the computers. XPEL believes most of the relevant ESI was in metadata and other deleted – but still retrievable – files.
The court agreed to expedite the imaging, and it named a forensic examiner to move quickly to copy the servers. In addition, the court ordered that XPEL would pay for the costs of the forensic examiner, explaining:
The forensic images shall be copied and retained by the Forensic Examiner until such time the court or both parties request the destruction of the forensic image files.
The Forensic Examiner will maintain all mirrored images and do so in the strictest confidence, and not disclose any information obtained to unauthorized persons.
With this case as persuasive precedent, parties may more frequently seek to immediately make mirror images of opponents’ servers.
Posted in: Electronically Stored Information | Federal Rules of Civil Procedure
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