Subpoena Duces Tecum in Civil Matter
All civil attorneys who I've discussed it with, seem to be aware of their ability to obtain electronic discovery in civil matters under the law, yet most have never ventured into that relatively uncharted territory.
Most SDT language is broad enough to include references to electronic and digital media, yet it leaves open the ability of the opposition to furnish selective hard copy data, that is very expensive to produce, very expensive and time consuming to search and read and as we know, missing underlying activity that only a forensic examination of a HD and other electronic media will disclose.
The gathering of evidence in criminal matters is facilitated by tools like search warrants, and prosecutors and criminal investigators who have the tools and the knowledge of how to use them. There are strict guidlines that must be met, but at least there is a charted route. That structure is not often present in the civil arena.
An SDT issued in a civil matter, can not only be frustrated by many of the same arguments seen in criminal matters, it is a lot more likely to have its potential as an evidence gathering tool diluted or diminished completely. The only exception I can think of comes in the area of intellectual property rights where plaintiffs in civil matters, have in some cases been virtually forced to go after digital discovery because from start to finish, virtually every component part of the infringement resides in the digital arena. Two examples are knock offs of software and recorded music.
OK, this brings us to the case at hand. It is a divorce matter in which we represent the ex-husband. The trial is over and my client has received a substantial judgement against his ex-wife, who lives with, and apparently supports, her super-stud enemployed, boy friend. It is pretty clear that she has rat-holed quite a bit of the community assets.
Investigation has shown that she recently bought a Hummer and a BMW for cash. She has no lawyer and is representing herself, claiming she is broke. Since the trial is over, we are in a very limited area of post judgement discovery. She can be deposed and my client's lawyer, understanding the potential of digital discovery (albeit somewhat late) would like to get her to bring that computer to the deposition or at least make it available for examination. Since the lawyer has never before specifically targeted a computer, I have been asked to try to provide specimen language that has been used in such matters. I realize that there are publically available sources for such guidance, but I am more interested in the experience of some of the experts on here than in the "school solution".
Thanks in advance!
When I first started this thread, I assumed that I would get the unselfish types of response from the group that so typifies most issues on Forensic Focus. And Iâ€™m confident that many members would have provided a substantive response, had they had one to give.
As I looked on the internet and searched local sources I have become more and more convinced that while in criminal matters, computer forensics has a seat on the 50 yard line, in civil matters, we are in many cases, not told that there is a ball game being played that weekend!
In the last three weeks I have talked to four experienced civil litigators, involved in 7 figure cases, who knew and understood the potential of cyber evidence, and of course â€œalways put that in their subpoenasâ€ – but never really went after it aggressively â€“ and never got anything more than a hard copy printout and the representations of the opposition the they were responsive. And then we have highly respected professionals like member Greg Marshall saying that in his practice he could handle more civil litigation than he currently receives. It makes me wonder if civil litigators need help refocusing their discovery priorities.
In fact, it was in response to a request from one such attorney, that I started this thread. I see now that that lawyer was far from alone. What Iâ€™m passing on to my colleagues here is not the ultimate answer, but anything that convert lawyers into winners by increasing the quality of the evidence they present, benefits both our professions.
I have done a lot of looking, but what appears in exhibit â€œAâ€ below, is the closest I have seen as to what is needed in a civil SDT. The fact that two of the companies involved here were Amway and Procter & Gamble suggests to me that the attorneys involved in drafting this document, were top guns. The items (13 & 14) are very interesting in that they contain (in advance) implicit arguments as to as to issues a Judge may be asked to rule upon by the opposition.
TO THE SUBPOENA FOR PRODUCTION AND COPYING OF DOCUMENTS, ELECTRONIC DATA, BOOKS, AND OTHER TANGIBLE THINGS IN THE POSSESION, CUSTODY, OR CONTROL OF JAMES J. LIPPARD
DOCUMENTS AND OTHER TANGIBLE THINGS TO BE PRODUCED FOR INSPECTION AND COPYING
INSTRUCTIONS TO THE RECIPIENT OF THIS SUBPOENA:
Amway Corporation believes that you are in the possession, custody and control of documents and other tangible things, including recordings, disks, tapes and other electronic data compilations from which evidence can be obtained, which is relevant to the civil action pursuant to which this subpoena has been issued. ALL DOCUMENT DESTRUCTION OR RETENTION POLICIES AND PRACTICES AND ELECTRONIC FILE DELETION OR DISK MANAGEMENT PRACTICES, POLICIES OR PROTOCOLS (INCLUDING BUT NOT LIMITED TO REFORMATTING OR DEFRAGMENTING PRACTICES) WHICH COULD HAVE THE EFFECT OF ALTERING OR DESTROYING INFORMATION REQUESTED BY THIS SUBPOENA WHICH IS ELECTRONICALLY STORED SHOULD BE SUSPENDED UNTIL YOU ARE EXCUSED FROM THIS SUBPOENA.
Failure without adequate excuse to obey this subpoena may be punished as a contempt of the United States District Court from which this subpoena is issued.
1. "Documents" includes, but is not limited to, the following materials: any and all papers, documents, correspondence, letters, manuals, computer disks (including floppy diskettes, zip disks, CD-ROMs, and hard drives), backup tapes, data otherwise electronically stored (including archival and backup copies of files containing data, as well as files or parts of files which may have been deleted by the user but which are nevertheless recoverable by any means), other data, photographs, videos, surveys, drawings, films, schematics, other computer generated information, handwritten or typewritten notes, charts, graphs, publications, diagrams, journals, calendars, diaries, logs, log books, messages, reports, or any other papers or writings or communications or summaries thereof.
2. "Amway" refers to Amway Corporation and any of its affiliates.
3. "P&G" refers to The Procter & Gamble Company and The Procter & Gamble Distributing Company and any of their affiliates.
4. "P&G Attorneys" refers to Robert Heuck; Fred Hamilton; any other partners, associates or employees of Dinsmore & Shohl; Stanley Chesley, Faye Chesley, LPA; any attorney who is an employee of P&G; and any other person or firm retained by P&G to prosecute or assist in any litigation between P&G and Amway, including non-lawyer consultants or experts.
5. "Amway–The Untold Story" refers to materials posted electronically on the "Amway–The Untold Story" web page formerly located at URL: http://www.teleport.com/~schwartz/ and linked pages, including archival or backup copies thereof.
6. "BLC" refers to the listserve or listserves maintained under one or more names which include the formative "blc" (as, for example, [email protected]) used to facilitate the exchange of electronic mail messages among Sidney Schwartz and other persons regarding Amway.
7. "STC" refers to the listserve or listserves maintained under one or more names which include the formative "stc" (as, for example, [email protected]) used to facilitate the exchange of electronic mail messages among Sidney Schwartz and other persons regarding Amway.
1. All documents, including electronically stored information and documents in whatever form, received by you from P&G or any P&G Attorneys regarding Amway or any Amway distributor;
2. All documents, including electronically stored information and documents in whatever form, sent by you to P&G or any P&G Attorneys regarding Amway or any Amway distributor;
3. All documents containing, referring or relating to any discussions or communications between you and P&G or any P&G Attorneys regarding Amway or any Amway distributor, including telephone records, for the past four years;
4. All documents pertaining to the Amway–The Untold Story Web Page;
5. All documents reflecting your source of the materials posted on the Amway–The Untold Story Web Page regarding Amway;
6. All documents referring or relating to discussions or communications between you and any person subscribing to BLC for the past four years, including Sidney Schwartz;
7. All documents referring or relating to discussions or communications between you and any persons subscribing to STC for the past four years, including Sidney Schwartz;
8. All documents containing electronic mail communications (or any excerpts thereof) authored or received by you during the last four years in which the word "Amway" is mentioned;
9. Checks, check copies, deposit slips and other records reflecting the receipt of money or other funds or credits from P&G or any P&G Attorneys;
10. Records of meetings, telephone conferences and memoranda reflecting meetings or discussions with P&G or any P&G Attorneys;
11. Records of meetings, telephone conferences and memoranda reflecting meetings or discussions with any person subscribing to BLC or STC;
12. All other documents authored or received by you during the last four years regarding Amway or any Amway distributor.
13. All electronically stored files or parts of files containing any of the information requested in any of the preceding items which have been "deleted" by you but which may nevertheless be recoverable by any means;
14. A complete "mirror" copy of each of your disks, tapes or other electronic storage media which contains any of the information requested in the preceding items. Amway will enter into a reasonable protective order to preserve the confidentiality of your information not relevant to this litigation.
You are right on the money Al in your last post. I have been doing examinations for law enforcement for a few years, and even smaller agencies are aware of the practice having good experience and success with it. But as I've tried for the past year to introduce the practice to civil attorneys in my local market I've learned that it is indeed uncharted territory to most. It suprises me that the same is the case in your market. I see the presentations being made to the various groups, bar associations, etc., and have given some myself, but still not a lot of interest. I'm doing a little better this year, and feel that perhaps the more I do the more word will get around. I spoke with an examiner in Hawaii recently and found that his experiences are in line with ours. I am confident however that the only way to go for this thing is up. I think we will see a time where there are a shortage of examiners and we'll have all the work we want. As for now I'm satisfied with a part time job so to speak, I still like arresting bad guys, and I'm not sure I'll give it up anytime soon.
I think another thing that has hurt my prospects a bit has been the practice of attorneys to contract with computer builders, etc. to conduct examinations. What they get in court is a kid in an iron maiden t shirt testifying that he used some software he downloaded off the internet called "chastity cracker" and that his experience includes hacking. If I had that experience, and I spoke with one local attorney that did, I would be hesitant to do it again. My challenge now is getting the word out that there is an alternative.
We have found the same in our market (Southeast). Getting the word out AND educating the attorneys the "what" and "how's" of computer forensics is one thing but it is another when they are only interested in the bottom line and hire a "kid" at the rock-bottom rate rather than a more skilled professional.
Send me a private e-mail, I think I have a few you of what you may be looking for…….
One is a model order of production for district court judges…
Thanks for the imput. I looked at the request for Documents and Things. At first glance our needs appear to have been covered in item 4. when it asks for a "bit-by-bit copy" however it goes on to limit that production to information relevant to the case.
If I were given that instruction, and wanted to limit the opposition, I would produce a full text copy of all of the relevant material I saw, or better yet, make an exact copy of every relevant file. If I could not assess an item's relevance because I could not see it, and it was not displayed in the operating system directory, I could not be reasonably expected to produce it.
As I see it, that Kroll description allows all manner evasion. I prefer the one used in the Amway v P&G matter. That one asks for an image, but is willing to recognize legitamate privacy interests of the opposition and work to accommodate them.
The difference is clear. Kroll says, "The only thing you have to give me is perinent data." Amwy v P&G says, "the only thing you can avoid giving me is material that is demonstrably private."
Your thoughts? Al
Thanks for your insight. Although not based in the US I am curious as to whether the concept of 'communal property' can be applied in the US, where one spouse or live-in partner has rights to use and therfore access a laptop or mobile owned by the other partner, and if any evidence gathered in domestic cases in such a manner without the 'owner's' consent can be used in civil cases?
Thanks & Regards,
We have operated in a wide variety of "Consentual Searches", including computer forensics, using a theory of "Owner in posession". Now these have always been in projected civil matters and nobody ever challanged it. I am not a lawyer, so I won't try to comment on the admissability of the evidence gathered.
The closest I can recall to generating a challange, was a CF report in a divorce case, which we gave to counsel. I am told that he shared it with opposition counsel. I also know that the case settled quietly. I know that my report contained a lot of embarrassing material. I have no idea as to whether that report was used in the "negotiations" between counsel, but if it were, a challange to the admissability of the CF consentual search might have been considered by the opposition.
Al makes some good points.
If we are talking just about the findings, If you want to challenge the findings, you would need to hire someone capable of analyzing the data and interpreting the data. That costs money. Plenty of times there will be a quiet settlement before the other side subjects embarassing material to "another" person or persons.
People have argued before on ownership of a computer, if someone had an account on the computer that was ever used, who paid for a computer, who paid the bill on a monthly ISP, if the computer was in a "common" area of the house, if the computer was password protected, etc. The time and money that is expended for those tasks may run over retainers, agreements, or opinions of those involved.
Al & Armresl,
Thank you for your input & advice.