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Does Purchasing Defendant’s Computer at Public Auction Violate Ethical Rules?

Posted on July 2nd, 2014

Can a plaintiff obtain a computer or hard drive through other means than court-endorsed discovery? Mining for metadata refers to looking within the embedded stratum of data in an electronics file for information. The information that can be found may include who authored the document, when it was created, software used, embedded comments, and even records of changes made to the document. Metadata mining has become a point of central focus within the realms of litigation and the discovery process, due in part to the inherent potential to capture documents that might be protected by attorney-client privilege and/or work-product protections. In Kyko Global Inc. and Kyko Global GMBH v. Prithvi Information Solutions LTD., et al., Case No. C13-1034 MJP (W.D. Wash. June 13, 2014), the court took up the issues of metadata mining and ethical conduct.

Defendant Computer Sold at Public Auction

Plaintiffs alleged Defendants created fictitious entities and owed Plaintiffs a balance of $17,000. Based on the complaint, the court issued an ex parte Temporary Restraining Order. Shortly after the Order, twelve of the named defendants settled. Plaintiffs then obtained a Writ of Execution pursuant to which the King County Sheriff seized a computer owned by one of the defendants. The computer was sold at a public auction and Plaintiffs outbid Defendants’ representative. Plaintiffs then sent the computer to a third party for analysis. Defendants promptly contended that Plaintiffs’ actions violated ethical rules. Defendants specifically challenged Plaintiffs’ use of computer forensic analysis to assess the contents of the hard drive.

Can Plaintiffs Perform a Forensic Analysis on this Hard Drive?

The court found that “when a party wrongfully obtains documents outside the normal discovery process, a court may impose sanctions including dismissal of the action, the compelled return of all documents, restrictions regarding the use of the documents at trial, disqualification of counsel and monetary damages.”

The court’s primary focus was centered on whether or not the documents were wrongfully obtained. The court found that the purchasing of the computer at a public auction could not be considered a wrongful acquisition, though the possibility that Plaintiff’s intended to obtain privileged materials through the purchase was a much murkier point. Still, in the absence of case law supporting sanctions and Plaintiffs’ claims that they had not reviewed the materials, the court did not find the acquisition to be wrongful.

Next, the court looked at whether the Plaintiffs’ use of forensic analysis was an ethical violation. The court considered a prior opinion and distinguished the copying of a hard drives’ contents from metadata mining, because a hard drive could plausibly contain many documents unprotected by any privilege. The court felt that the forensic analysis of the computer aligned with this interpretation, and as such, Plaintiffs had a legitimate purpose apart from the discovery of privileged documents.

ILS – Plaintiff Electronic Discovery Experts

Did you know: One Tweet can contain nearly 40 pieces of unique metadata, including location stamp, language, date of account creation, number of followers and URLs.

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