In This Issue:

	From the Bench: Courts Set High Standards for Hard Drive Examination by Opposing Party
	The Brill Files: We All Play a Part in Safeguarding the Environment
	Technology You Should Know: How to Combat Intellectual Property Fraud -- Be Prepared
	News & Events

From the Bench: Courts Set High Standards for Hard Drive Examination by Opposing Party

Plaintiff Ordered to Produce Hard Drive for Forensic Examination by Defendant
Orrell v. Motorcarparts of America, Inc., 2007 WL 4287750 (W.D.N.C. Dec. 5, 2007). In this sexual harassment suit, the plaintiff sought damages alleging sexual harassment, gender discrimination, hostile work environment and wrongful discharge based on receipt of inappropriate e-mails from co-workers and customers. Alleging improper destruction of evidence and incomplete compliance with discovery obligations, the defendant filed a motion to compel seeking production of the plaintiff’s home and work computers and an order prohibiting further destruction of evidence. The plaintiff argued that complying fully with all of the defendant’s requests would create an undue burden. Agreeing with the defendant, the court determined that the burden to preserve evidence was not eliminated due to the alleged crashing of the plaintiff’s home computer. The court found the defendant’s requests to be “reasonably calculated to lead to the discovery of admissible evidence”, and ordered the plaintiff to produce her home computer for forensic examination. The court also ordered the plaintiff not to further destroy relevant evidence. Additionally, the court warned the plaintiff that failure to comply may result in sanctions including dismissal of the case with prejudice and payment of the defendant’s attorney’s fees.

Data Stored on Hard Drive Connected to Network Belongs to Network Administrator
United States v. King, No. 07-11808 (M.D.Ala. Dec. 14, 2007). In this appeal of a conviction for transportation of child pornography, the defendant, a civilian contractor at a United States Air Force base, sought a motion to suppress evidence obtained from his computer hard drive as violating of his fourth amendment right to be free from unreasonable search and seizure. The government obtained evidence from the defendant’s hard drive via a “shared” drive by an airman searching for music files. Upon discovery of the pornographic images, the airman notified a computer specialist who accessed the drive in the same manner. Subsequently, the specialist notified an investigator who obtained a search warrant and seized the defendant’s computer. Determining that data saved on a hard drive connected to a network belongs to a network administrator, the court held that the defendant had no legitimate expectation of privacy for files located and accessible via a shared network drive, and therefore denied the defendant’s motion to suppress.

Appellate Court Upholds Order to Allow Plaintiff Access to Mirror Image of Defendant’s Hard Drive
In re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007). In this real estate litigation, the defendants sought a writ of mandamus to set aside a discovery order requiring them to produce office hard drives for imaging by a computer forensic expert in an effort to locate two particular documents. The defendants objected to the discovery order, arguing it was overbroad and would lead to the disclosure of privileged and confidential information. The court looked to federal and state courts for guidance on the general process of hard drive mirror imaging for discovery. Disagreeing with the defendants, the court found the order was not overbroad, as the defendants were granted a right of first refusal in determining whether information obtained was relevant to the two documents at issue. Further, the court found there were adequate safeguards against disclosure of privileged information as the defendant was able to review for privilege prior to production.

The Brill Files: We All Play a Part in Safeguarding the Environment

A few weeks ago, I was offered the opportunity of a lifetime. I have been selected to participate in the Robert Swan International Antarctic Expedition, “The E-Base Goes Live,” from March 13-26, 2008. I will be one of seventy participants. The focus of this expedition will be the use of renewable resources, namely solar and wind power, to support daily life functions such as heating, lighting, food preparation and personal hygiene as well as internet, phone and satellite communications. Additionally, the goal of the expedition is to educate young adults on the importance of Antarctic preservation and the effects of non-renewable resources on global warming.

All of the energy we consume while in Antarctica will be created from renewable energy. Solar panels and wind turbines will collect sun and wind energy. That energy will be converted into electricity stored in batteries and then used to operate our appliances and gadgets. Studies show that 80% of air pollution and more than 83% of greenhouse gas emissions are caused by energy production and use. If we are able to live comfortably for an extended period of time in Antarctica, one of the coldest places on Earth, then perhaps future generations will be inspired to implement renewable energy resources at home to decrease the environmental damage caused by non-renewable energy. Robert Swan chose Antarctica for this experiment to bring awareness to the fifth largest continent, which contains 70% of the Earth’s fresh water and 91% of the world’s ice. If global warming were to cause the ice to melt, the oceans of the world would rise two hundred and thirty feet. While the continent is currently protected by a treaty prohibiting drilling and mining, that treaty is set to expire in 2041.

If you would like to explore the opportunity of world-renown forensics expert, Alan Brill, speaking at a conference you are supporting or organizing, please contact Kristin Husom at 952 516 3781 or at khusom@krollontrack.com.

Technology You Should Know: How to Combat Intellectual Property Fraud -- Be Prepared

Intellectual Property (IP) is the right to enjoy the benefits of one’s creative genius. It includes rights via the patent system for novel inventions, copyrights on creative arts and music and trademarks in symbols and designs that have grown to represent a particular company. While IP is critical to the economy as an engine of growth, it can be a company’s most valuable asset and most dangerous threat. As one CEO of a top corporation noted, “If you are not constantly worried about counterfeiters, you probably don’t have a very good product.”

IP threats come in two varieties: counterfeiting and piracy. To counterfeit is to falsely label one’s goods with the trademark of another to mislead the purchaser into thinking the good was made by oneself. Examples of counterfeiting include: boot-legging DVDs, creating fake designer clothing, handbags and jewelry and falsifying prescription drugs. Piracy is using or distributing another’s IP illegally. One common type of piracy is software piracy whereby the consumer uses the software without a proper license. While these crimes have plenty of history, there has been an enormous rise in both counterfeiting and piracy in recent years, The European Union Customs reports a 1000% increase in the number of counterfeit goods in Europe between 1998 and 2004, and the World Customs Organization estimates the value of physical and Internet digital goods pirated or counterfeited to be approximately $650 billion -- a figure equivalent to five to seven percent of world trade.

Even amidst such grim statistics, a company can, with preparation and intentionality, protect itself against IP counterfeiting and fraud. Essential to this end, a company needs to maintain accurate computer records, including e-mail communications, web mail logs, VPN logs, send mail logs, instant messaging, web activity logs and print logs. Computer forensic experts also advise companies to retain forensic images of the hard drives for employees departing the company under suspect circumstances. These records prove extremely helpful to a computer forensic specialist or fraud investigator should an incident occur. For example, in a recent case, a factory worker walked off the production floor with paper copies of a company’s secret formulas. Specific computer logs allowed investigators to identify the likely suspect and build a civil case, which led a court to issue a civil search warrant. The suspect’s house was raided, the stolen documents were recovered and arrest warrants issued.

Additionally, Legal, IT and Security teams within an organization should consider having a proactive relationship in place with a computer forensic specialist or fraud investigator. As the scale of threat to IP continues to increase, ignorance can be costly. Having an established relationship with a computer forensic expert will provide insight into IP theft and help prevent your company’s most important IP from walking out your front door.

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NEWS & EVENTS

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We Request Your Input

Our legal consultants, project managers, and technology experts strive to stay on top of e-discovery law. If you are aware of any additional local court rules or new cases in this area of the law, please contact us by writing to jshogren@krollontrack.com.

This newsletter is written by Joni Shogren, a Kroll Ontrack staff attorney with assistance from Gina Jytyla, also a Kroll Ontrack staff attorney. Ms. Shogren can be contacted by writing to jshogren@krollontrack.com.

For more information about e-discovery and computer forensics services, contact Kroll Ontrack at 800 347 6105 or www.krollontrack.com.