I am a long time fan of Bow Tie Law's Blog, but I especially enjoyed a recent post discussing Genworth Fin. Wealth Mgmt. v. McMullan (2010 U.S. Dist. LEXIS 53145 (18-19) (D. Conn. June 1, 2010).
Let me say at the outset that judges are indeed loathe to order forensic examinations of personal computers in business cases. Our bright line question is: "Have you ever used your personal computer for business purposes?" There can be permutations on the question and follow up questions, but once you've established that there might be some relevant data on the personal computer, judges become more amenable to forensic examination, so long as the search is narrowly tailored.
In the Genworth case, a defendant provided false testimony and engaged in all manner of shady behavior, which probably made it even easier for the judge to determine that forensic analysis was warranted. In this case, the judge ordered the hiring of an independent expert, with Defendants paying 80% of the cost and Plaintiff 20%.
Mind you, the Defendants (as should always be the case) were allowed to review the ESI first for privilege and responsiveness. This is how it should be, though we've sometimes (incredibly) seen computers simply turned over to the other side for imaging and analysis - once in a while, even without a search protocol. This is clearly not the right approach, and we are seeing it less and less often. In the paper world, you could not simply forage through files so we have long thought it strange that there are cases in the electronic world where foraging has been allowed.
This case, with a neutral third party expert and cost-allocation, strikes a good balance. Well worth reading the post and the underlying case. Nicely done Josh.
E-mail: snelson@senseient.com Phone: 703-359-0700
