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Ohio Appeals Court Considers Forensic Imaging as Sanction

Posted on May 30th, 2014

When is seizure of hard drives for forensic imaging warranted as sanction during electronic discovery? Such was the issue before the Court of Appeals of Ohio in an Order dated April 24, 2014 in the case Fasteners for Retail, Inc. v. DeJohn, et al., No. 100333 (Ct.App.Ohio 8th District).

In this case, one of the multiple discovery orders was in response to Plaintiff’s Motion to Compel for the production of Defendants’ computer hard drives. Plaintiff alleged Defendants had engaged in evasive and possibly perjured testimony, and that there might be spoliation of crucial evidence. The trial court ordered production of the hard drives, and Defendants appealed.

The Defendants appealed the Order based on the following alleged errors:

1. The trial court erred in ordering production of irrelevant, privileged and confidential info that put an undue burden on Defendants;

2. Forensic imaging of the hard drives was in error as Plaintiff failed to demonstrate sufficient information to warrant such a degree of intrusion, disruption and invasion;

3. The trial court failed to include any protocols or procedures to adequately protect Defendant’s confidential electronically stored information (ESI).

The appeals court reviewed the case under an abuse of discretion standard. It looked to the procedures set out in Bennett v. Martin, 928 N.E.2d 763 (Ohio App. 2009), which set out a two-part procedure for forensic imaging:

1. There must first be a showing of non-compliance with discovery. The appeals court agreed that this had not been done in the present case: the record did not show the documents sought were being unlawfully withheld or that such data was not available from other sources.

2. The court must provide for a protective protocol, such as an independent computer forensics expert to review the images under a confidentiality order. The appeals court found that was also not done in the present case, as no protective protocol was entered.

Therefore, the appeals court held the trial court abused its discretion in ordering forensic imaging of the hard drives in this case and remanded back for further proceedings consistent with its order.

ILS – Plaintiff Electronic Discovery Experts

Did you know? It took 51 years to manufacture a hard drive storing 1 terabyte of data; but only 2 years later, 2 TB drives were available.

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