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E-⁠Discovery Case Law Library
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Case shelved under Proportionality

How to Determine When Forensic Imaging Should Be Used in E-Discovery

John Finkelstein v. San Mateo County District Attorneys Office
N.D. Cal. May 17, 2018
Why This Case is Important

With the courts’ emphasis on proportionality and greater familiarity with what constitutes an authentic record, the practice of taking forensic images for preservation purposes is becoming less common in civil cases. In this case, the court helps decipher when forensic imaging still should be used.

Overview:

The plaintiffs in this case asked the court to reconsider its prior ruling allowing some of the plaintiffs’ electronic devices to be forensically imaged.

There is no dispute that the plaintiffs had a duty to preserve information that was stored on the electronic devices in question. The plaintiffs admitted when the devices are in regular use, “information would be overwritten – i.e., information would not be preserved.” Since the plaintiffs did not want to stop using these electronic devices, the court’s initial ruling permitted the forensic imaging of “at least some devices” at no cost to the plaintiff.

Based on prior case law, the plaintiff argued the merits of reconsidering the original ruling on the basis that imaging should only be “employed in very limited set of circumstances” and shouldn’t apply imaging in a “broad nature,” which the court’s ruling violated in this case.

Ruling:

The Plaintiffs’ Request for Reconsideration Denied. Even though the plaintiffs’ failed to meet the standard for reconsideration, the court ruled on the merits that their argument against imaging fell short.

Forensic Imaging Needed. Since the plaintiffs wouldn’t agree to stop the use of the electronic devices in question, the court ruled that it had to use imaging to ensure potentially relevant data was not deleted.

Only a Sampling. The court ruled that the request to image some of the plaintiffs’ electronic devices was not “extremely broad” based only allowing imaging on a sampling of the electronic devices.

Legal Analysis
On John Finkelstein v. San Mateo County District Attorneys Office
Cristin Traylor, Esq., Counsel, McGuire Woods
BY
Cristin Traylor, Esq., Counsel, McGuire Woods

Imaging electronic devices in civil cases is a slippery slope. Although the court justified the imaging because it was only a sampling of electronic devices and the plaintiffs admitted that information would be overwritten, it sets a dangerous precedent. A more reasonable approach would have been a targeted collection for preservation purposes instead of full-blown imaging.

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