New York Court Provides Detailed Instruction on Protocol for Discovery of Cloned Hard Drive

Schreiber v. Schreiber, 2010 WL 2735672 (N.Y. Sup. Ct. June 25, 2010)

In this matrimonial action, plaintiff sought access to her husband’s (the defendant) office computer to determine his true financial condition. After denying plaintiff’s initial motion, the court directed (by stipulated order) that a clone of defendant’s office hard drive be made at plaintiff’s expense. Thereafter, the court denied plaintiff’s motion for access to the cloned drive upon finding her request for unrestricted access overbroad. “Equally important” to the court was plaintiff’s failure to propose any protocol for investigation of defendant’s hard drive. The court instructed that should the plaintiff wish to renew her motion, her renewal “must contain a detailed, step-by-step discovery protocol that would allow for the protection of privileged and private material.” Moreover, the court provided detailed instruction for what such a protocol should contain:

(a) Discovery Referee: The parties will have until the renewal deadline to agree on an attorney referee, preferably someone with some technical expertise in computer science, to be appointed pursuant to CPLR 3104(b) to supervise discovery (the referee). [FN10] If the parties fail to agree on a referee before the renewal deadline, they will submit two names each to the court (along with a summary of the proposed referee's qualifications, not to exceed one page, and hourly rate), and the court will select a referee from among the candidates submitted.

(b) Forensic Computer Expert: The parties will have until the renewal deadline to agree on a forensic computer expert who will inspect and analyze the clone (the expert). If the parties fail to agree on an expert before the renewal deadline, they will submit two names each to the court (along with a summary of the proposed expert's qualifications, not to exceed one page, and the expert's fee structure), and the court will select an expert from among the candidates submitted. The expert will execute a confidentiality agreement (to be agreed upon by the parties) governing non-disclosure of the contents of the clone and its re-delivery to defendant's counsel after completion of electronic discovery.

To Continue Reading: Click Here
--------------------------------------------
Source: ediscoverylaw.com