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Court Denies Request for Forensic Examination of Computers To Locate Missing Email

Posted on September 28th, 2016

AP Links, LLC et. al. v. Russ et. al., Case No. 09-5437 (E.D. N.Y., Sept. 7, 2016) is a business torts case involving a golf course consulting agreement, a large revolving credit facility, and alleged misconduct by an attorney and his law firm. During discovery, the court issued an order denying a request by Plaintiffs to permit their forensic computer expert access to Defendants’ ESI.  However, the court did order Defendants’ counsel to search Defendant Russ’s personal laptop and Blackberry and to produce responsive documents within 30 days.  If no responsive documents were produced from the searching, Defendants’ counsel was obligated to file an affirmation explaining how he searched the hardware and the rationale for the search results. However, Plaintiffs found an email between Defendant Russ and an involved party, Neil Trabich, which was not produced by Defendants.

Plaintiffs filed a letter motion alleging that Defendants did not make any effort to determine whether the ESI from their computer system was copied and retained by their outside IT vendor. Defendant Russ had not engaged an ESI expert to help with his searches, and he had admitted in the past that he never searched the periodic backups. Plaintiffs sought reconsideration of the previous order and asked to be permitted to conduct a forensic examination of the computers. In the alternative, Plaintiff sought an order requiring every outside IT vendor used by Defendants since 2006 to search for the missing email.

Defendants opposed the requests, submitting an affidavit from Defendants’ counsel attesting to the search of the computers by Defendant law firm’s IT provider performed in counsel’s presence and testifying that the email in question was not found.

The court found no basis for reconsideration, holding that Plaintiffs had not met the burden of showing an intervening change of controlling law, new evidence, a need to correct a clear error or to prevent manifest injustice. The court had previously considered all the information provided in entering the previous order, and it was well within the court’s discretion to prevent Plaintiffs’ expert from searching the computers while requiring Defendants’ counsel to do so. The court denied the Motion.

ILS – Plaintiff eDiscovery Experts

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