Doug Austin: Forensic Examination by a Third-Party Expert Denied by Court

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Extract from Doug Austin’s article “Forensic Examination by a Third-Party Expert Denied by Court”

In Azenta, Inc. v. Andrews, No.: 22-cv-01952-JLS-JLB (S.D. Cal. Dec. 21, 2023), California Magistrate Judge Jill L. Burkhardt granted in part and denied in part the plaintiff’s motions, denying plaintiff’s request for a comprehensive forensic examination by a third-party expert, finding that “the burden of the additional costs to Andrews under Plaintiff’s protocol and the time both parties’ experts and counsel would expend substantially outweigh the benefit Plaintiff would likely receive”. However, she did order defendant Andrews and her counsel to “submit to Plaintiff a declaration(s) that lists all devices and accounts on which Plaintiff’s information may have been stored, accessed, deleted, or transferred.”

Case Background

This case involved allegations of misappropriation of trade secrets by a former employee of the plaintiff, who “downloaded and sent Plaintiff’s proprietary customer and billing information from her work email address to her personal email address at least five times” and failed to return her primary company laptop.

Defendants’ counsel engaged Epiq to obtain and analyze forensic images of several data devices of the defendant. Plaintiff had requested that Defendants allow “a neutral third party to monitor [Epiq’s] investigation” in order to “determine whether or not the search was full and complete”, but defendants refused. Epiq conducted a forensic analysis to determine if Andrews had downloaded, accessed, emailed or otherwise distributed a specific billings Excel spreadsheet, but found no evidence to indicate that it had. Epiq also “attempted to determine if the file or contents of the file were used within the LVL laptop or if the file … had perhaps been renamed so as to hide it from discovery.”

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