You can also use our form as a suggested order for the court if you need to move the court for an order for an examination. Look at 21 areas of potential disagreement and the resolutions made in this form!
#4526 Agreement or Order for Expert to Examine Computers covers the following areas. (This multiple page legal form puts you quickly into final draft mode.)
- Who is to make the computers available for data recovery.
- Specification of which computers are to be examined.
- Defined time period of ESI involved.
- Subject matter or keywords of ESI recovery.
- Types of ESI documents and data to be recovered.
- Expert chosen.
- Date of availability of computers.
- Preservation and spoliation efforts found by Expert.
- Email attachments.
- Data which was opened then saved, altered, transferred or reproduced.
- Chain of custody.
- Review of recovered data by producer.
- Privilege claims.
- Production by producer to requestor.
- Personal emails.
- In camera inspection by Court.
- Costs of providing Specified Computers.
- Fees of Expert.
- Petitions after initial production.
Know the subject and have suggested draft wording. You want the confidence and knowledge that Agreement or Order for Expert to Examine Computers can give you. This is an even-handed protocol that is likely to be agreed upon by all concerned, or adopted by the court as a fair way to have an expert get the data out of the computers.
Agreement or Order for Expert to Examine Computers provides for an expert’s examination of computers . Sometimes it is best (and cheapest) to have one neutral forensic expert examine the involved computers, whether they are the computers of your adversary or of your client. E.g., inKoosharem Corp. v. Spec Personnel, LLC, 2008 WL 4458864 (D.S.C. Sept. 29, 2008) forensic analysis was needed because defendant’s production of emails in discovery showed they had been improperly copied for production by the producing party (e.g., metadata showed the date copied rather than the date the document was originally received or sent; several emails allegedly retrieved from employee Doyle’s computer did not have Doyle listed as a sender or recipient; and many emails produced were missing their attachments which had been opened and copied to other locations).
Not only may it be necessary to examine the computers used in a business, but also it may be necessary to examine the computers used by key personnel at their homes. Such a need may arise because adversary personnel are conducting work from home during day, night, or weekend using their home computers and personal home email accounts. It may arise because adversary personnel have emailed business information to their home computers. (For example, in a claim that former employees improperly have taken proprietary information and are using it in their new employment, you will want to examine not only the computers of the new employer, but also the personal computers of your former employees who are now employed by your adversary.)
There is a lot to consider when you suggest a joint expert do an examination of computers, retrieve data, and thereafter get it routed to complete a discovery request and response. #4526 Agreement or Order for Expert to Examine Computers is the place to start!
You can have an agreement between you and adverse counsel. If you cannot get it, then the form’s protocol for the expert’s examination and delivery of data (and producer’s opportunity to first examine and reserve privileged data, and procedure for requestor to challenge the asserted privilege) can be incorporated by you into a proposed order for the court to sign. In short, whether negotiating an agreement with your adversary, or suggesting an order to the court, you need to consider the items that are in this form protocol. Plus, you need the three pages of suggested language for either an agreement or an order.
This form on sale here – Agreement or Order for Expert to Examine Computers – helps you gain the initiative in a civil manner. Whether you are demanding the inspection, or receiving a demand for computer inspection, the person who first offers language for the inspection is more likely to have their language accepted. Show the other side you know what you are talking about.
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