In This Issue:

	From the Bench: Courts Rely on Computer Forensic Experts
	The Brill Files: Fascinating Misbehavior
	Technology You Should Know: Courts Now Requiring Computer Forensic Experts-Be Prepared
	News & Events

From the Bench: Courts Rely on Computer Forensic Experts

State Not Required to Produce Copy of Hard Drive Allegedly Containing Child Pornography to Defendant
State v. Wells, 2007 WL 2769686 (Minn. Ct. App. Sept. 25, 2007). In this criminal case, the defendant moved to compel production of a forensic copy of his seized computer hard drive along with copies of all images of child pornography he allegedly downloaded. Taking note of persuasive precedent, the district court denied the motion but ordered the state to provide the defendant with an opportunity to review and inspect the computer images. The defendant maintained that the order violated his due process rights and requested appellate review. The district court framed the issue as a question and certified it to the Minnesota Court of Appeals. Finding that the district court did not abuse its discretion, the appellate court answered the certified question in the negative, concluding that the state is not compelled to produce copies of seized images and computer hard drives allegedly containing child pornography where the state provides a reasonable opportunity to view and inspect those materials at a law enforcement office.

The Brill Files: Fascinating Misbehavior

In one of my recent media interviews, a question was posed that really got me thinking. “What is one of the most fascinating cases you have worked on in all your years as a computer forensic expert?” asked the journalist. The question puzzled me because I was not sure if I should delve into the story about the time I nearly took a bullet while attempting to retrieve a hard drive or one of the many times where I recovered data that the client thought was lost forever. It was the word “fascinating” that got me thinking.

The case that most fascinates me stemmed from a breach of contract claim where our client sued his former employer for money he believed was due him under a commission agreement. Rather than calling us right away, however, our client’s counsel waited for two years into the litigation. Having waited two years, not only were the parties having an extremely difficult time coming to any sort of agreement, the judge had also grown impatient.

You see, the opposing party performed numerous tactics in an attempt to cover up evidence and scare away our client. They migrated data on servers and computers in the middle of litigation and then claimed the system crashed, therefore making them unable to locate, let alone produce, any relevant documents. They also recommended onsite keyword searching of the data. Despite my advice about the dangers of performing searches on live data, the judge reached a breaking point with the parties’ discord and ordered the search to be done before his very eyes. This decision required me to bring the Kroll Ontrack lab to the courthouse conference room – keyboard, monitor, hardware, software, evidence bags, and so forth.

Complying with the judge’s order and the 75 search terms agreed upon by the parties, I was able to recover and locate enough documents to fill the Empire State Building. Opposing counsel then used Kroll Ontrack’s online document review tool, Ontrack Inview, to further search the documents. The result -- numerous relevant documents were found that opposing counsel had argued earlier were non existent.

Believe it or not, it gets worse. Not only did the opposing party wrongfully claim the documents were not in existence, I was able to uncover further evidence on the servers and hard drives showing that the opposing counsel had downloaded the “non-existent” documents and proceeded to delete them from his laptop, all while claiming they did not exist. One week after all of this fascinating forensic work, the case settled in favor of our client.

If you would like to explore the opportunity of 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: Courts Now Requiring Computer Forensic Experts-Be Prepared

With the changing complexities of technology, it’s very important to develop a relationship with a reputable computer forensic expert. Judges are no longer willing to accept the unknown and stop when research becomes too difficult or technologically complex. Judges are basing decisions on answers and testimony from technical experts. Having an effective computer forensic expert on your side can make the difference between a win and loss.

Not only are courts expecting thorough investigations of computer evidence, some have gone as far as to order the use of a computer forensic expert. For example, in Peskoff v. Faber, 2007 WL 2416119 (D.D.C. Aug. 27, 2007), the court ordered both sides to solicit bids from computer forensic experts during the ongoing discovery battle. The plaintiff sought what they claimed to be highly relevant e-mails that the defendant claimed were no longer in existence. Rather than taking the defendant’s word for it, the court ordered inspection by a computer forensic expert and required both sides to solicit bids from qualified experts.

In another case, the court allowed one party’s computer forensic expert, over objection, to image the other party’s hard drives during the evidentiary hearing due to their inability to comply with their discovery obligations. Warner Bros. Records, Inc. v. Souther, 2006 WL 1549689 (W.D.N.C. June 1, 2006). Another court threatened the parties with appointing its own computer forensic expert to get to the truth and threatened to impose sanctions based on the information uncovered from such investigation. Koninklijke Philips Elec. N.V. v. KXD Tech., Inc., 2007 WL 879683 (D. Nev. Mar. 20, 2007).

There are multiple reasons why the knowledge of a computer forensic expert may be required in any given case. The bottom line is that it is recommended to establish a relationship with a reputable expert in advance of needing their services. If your decision comes during litigation, it will be shadowed by the pressures of the case at hand. If you establish a relationship with a reputable expert a head of time, you will be able to call on their expertise when you require it.

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.