District of South Carolina: Forensic Protocol Granted Where Mobile Devices Returned in 3 Hours

On Friday, Judge Timothy M. Cain, issued a decision, Indus. Packaging Supplies v. Davidson, No. 6:18-0651-TMC, 2019 U.S. Dist. LEXIS 28143 (D.S.C. Feb. 22, 2019), granting in part and denying in part a Motion to Compel the Entry of a Forensic Protocol filed by the Plaintiff. This case concerns this misappropriation of trade secrets and proprietary information by former employees of IPS.

The Plaintiff's forensic expert submitted an affidavit stating that the Defendants sent some electronic files to external devices. The proposed protocol would require the Defendants to make these devices available for preservation, but allow them to have a representative present during this process. Search terms used to look for data on the devices had to be agreed to by both sides or approved by the Court. The Defendants countered that they had already searched for the relevant information, and that the search would violate their privacy, and could be obtained by other means.

The Special Master appointed in the case ruled that the Defendants should comply with the protocol but the search terms should be narrowly tailored to exclude irrelevant data; disputed terms were to be excluded; and the searches related to two particular Defendants end at the time their employment did.

Judge Cain noted the proportionality discovery standard of Federal Rule of Civil Procedure 26(b)(1), and Federal Rule of Civil Procedure 34(a), which allows a party to request ESI stored on any medium from which the information can be obtained, but which also states that such requests may raise privacy concerns. He concluded that the protocol would not unnecessarily intrude upon the Defendants' privacy because specific devices and search terms were identified and since "mobile devices are to be returned within three hours; and the data preservation is to be scheduled and carried out in a manner to cause the least disruption to Defendants" Id. at *10.