Chapter 17. Discovery of Computers and Storage Media
Information in this chapter:
• An example of a simple consent to search agreement
• Example of a simple order for expedited discovery
• Example of an order for expedited discovery and temporary restraining order
In this chapter we cover the language needed to get discovery of computer and storage media. We include here examples of language you can use for simple discovery orders, restraining orders, and a consent to search form. These are only examples and should be modified to suit your individual case. For language examples for criminal cases, see Chapter 15.
Keywords
Restraining Order, Order to Compel, Consent to Search
Introduction
In this chapter we cover the language needed to get discovery of computer and storage media. We include here examples of language you can use for simple discovery orders, restraining orders, and a consent to search form. These are only examples and should be modified to suit your individual case. For language examples for criminal cases, see Chapter 15.
17.1. An example of a simple consent to search agreement
A consent to search agreement is used by law enforcement agencies to get permission to search electronic storage devices without having to apply for and receive a search warrant. These agreements are also used by private firms when needed to show that a person has provided his or her consent to search in lieu of having to obtain a court order to compel compliance. These types of forms are used when the person giving consent has agreed to voluntarily cooperate in a search in a criminal or civil case. In either case, it requires that the person signing the agreement have the legal right to give consent to search the particular item and also be legally capable of giving consent.
These types of consent forms are not usually notarized, but can be if that is desired for some reason to provide additional authentication of the document.
DATE:______________________
TIME:______________________
I, _________________________, hereby authorize_________________________to:
a. Conduct a search of my computer hard drives, floppy disks, CDs, cell phones, media players and other data storage devices, identified as _________________________;
b. Said search may include any or all data contained on the referenced Hard Disk Drive or other storage media, whether in files, tables, other data structures, or unallocated space;
c. Said search may include removal of the computer and/or other data storage devices from their present location at _________________________, incidental production and examination of a duplicate Hard Disk Drive or analysis files which contain all the data on the referenced Hard Disk Drive, said duplicates, files, and data becoming the sole property of _________________________.
This written permission is being given by me to the above named _________________________ voluntarily and without threats or promises of any kind, and is given with my full and free consent.
__________________________________________________
Signature of Person Giving ConsentWitness
__________________________________________________
Printed NameWitness
_________________________Address
_________________________
Phone Number
17.2. Example of a simple order for expedited discovery
This is an order used to compel discovery in a simple case where a motion has been filed to allow collection of evidence from the opposing party. This is only an example and should be appropriately modified by an attorney for use in a particular case.
THIS CAUSE came on to be heard before the undersigned Superior Court Judge Presiding over the Civil Session of ______________ (Superior, District, Other) Court, on _________, on Plaintiff’s Motion for Expedited Discovery.
The Court, having reviewed the pleadings of record, finds that the Plaintiff has shown that reasonable grounds exist to believe the following:
1. This is an action by Plaintiff seeking damages relating to Defendant ____________________________________ at _____________________________ hereinafter known as “ADDRESS”.
BASED UPON THE FOREGOING FINDINGS OF FACT, THE COURT FURTHER CONCLUDES AS A MATTER OF LAW that an order should be entered granting expedited discovery to permit Plaintiff’s inspecting and copying all of the computers; hard drives, disks, CDs, DVDs, memory sticks, thumb drives, or any other medium upon which information is stored electronically, which are at the Business Location.
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED as follows:
1. Defendants shall allow representatives of Plaintiff to enter the ADDRESS (_______________) and conduct an examination of any of the computers; hard drives, disks, CDs, DVDs, memory sticks, thumb drives, or any other medium upon which information is stored electronically, which are at the ADDRESS. Such examination may include copying of all computer hard drives, disks, CDs, DVDs, memory sticks, thumb drives, or any other medium upon which information is stored electronically. Defendants may permit Plaintiff’s representatives to remove such items to expedite copying process, or may permit the inspection and copying to be performed at the ADDRESS, as Defendants may elect.
2. Defendants shall permit the entry and copying described above beginning at____ on the ___day of _____________, 20XX and continuing until finished.
3. The __________________Sheriff shall serve this Order for Expedited Discovery upon Defendants as immediately as possible.
4. The information discovered in response to the inspection and copying permitted herein shall be used by Plaintiff solely for the prosecution of its claims, and for no other purpose whatsoever, unless and until the Court orders otherwise.
17.3. Example of an order for expedited discovery and temporary restraining order
This is an order used to compel discovery in a simple case where a motion has been filed to restrain the party from destroying evidence and to allow collection of evidence from the opposing party.
This is only an example and should be appropriately modified by an attorney for use in a particular case.
THIS CAUSE came on to be heard before the undersigned Superior Court Judge Presiding over the Civil Session of _________ County Superior Court, on __________, on Plaintiff’s Motion for Temporary Restraining Order and for Expedited Discovery.
The Court, having reviewed the pleadings of record, finds that the Plaintiff has shown that reasonable grounds exist to believe the following:
1. This is an action by Plaintiff seeking damages and injunctive relief relating to Defendants________ and _____________ breach of a contract containing a covenant not to compete: and relating to all Defendants’ misappropriation and use of Confidential Information and trade secrets of Plaintiff.
2. Defendants do business in competition with Plaintiff, and using Confidential Information and trade secrets of Plaintiff, _________________, from a location whose address is ______________________________ (“The Business Location”).
3. Defendants have misappropriated and used Confidential Information and trade secrets of Plaintiff: the Confidential Information and trade secrets are stored on computers owned or operated by Defendants which are at the Business Location (and which may be at other locations): and Defendants may secrete or destroy evidence of their use of the same irreparably and immediately injuring the Plaintiff if they are not enjoined from doing so.
BASED UPON THE FOREGOING FINDING OF FACT, THE COURT CONCLUDES AS A MATTER OF LAW that a temporary restraining order should be entered, preventing Defendants from removing, destroying, or tampering with any of the computers; hard drives, disks, CDs, DVDs, memory sticks, thumb drives, or any other medium upon which information is stored electronically, that they may have at any location.
BASED UPON THE FOREGOING FINDINGS OF FACT, THE COURT FURTHER CONCLUDES AS A MATTER OF LAW that an order should be entered granting expedited discovery by permitting Plaintiff’s inspection and copying of all of the computers; hard drives, disks, CDs, DVDs, memory sticks, thumb drives, magnetic tapes, or any other medium upon which information is stored electronically, which are at the Business Location.
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:
1. Defendants are temporarily restrained and enjoined from removing, destroying, or tampering with any of the computers, hard drives, disks, CDs, DVDs, memory sticks, thumb drives, magnetic tapes, or any other medium upon which information is stored electronically, that they may have under their possession, custody, or control, at any location.
2. Hearing on Plaintiff’s motion for preliminary injunction, extending the restraints set forth herein, shall be held in the _____________, _____________ of _____________at_______ on the _____day of___, 20XX, or as soon thereafter as may be reached.
3. Plaintiff shall post as a bond, with respect to entry of the restraints set forth, the principal amount of $________.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED as follows:
4. Defendants shall allow representatives of Plaintiff to enter the Business Location (_______________) and conduct an examination of any of the computers, hard drives, disks, CDs, DVDs, memory sticks, thumb drives, or any other medium upon which information is stored electronically, which are at the Business Location. Such examination may include copying of all hard drives, disks, CDs, DVDs, memory sticks, thumb drives, or any other medium upon which information is stored electronically. Defendants may permit Plaintiff’s representatives to remove such items to expedite the copying process, or may permit the inspection and copying to be performed at the Business Location, as Defendants may elect.
5. Defendants shall permit the entry and copying described above beginning at____ on the ___day of _____________, 20XX and continuing until finished.
6. The __________________Sheriff shall serve this Temporary Restraining Order and Order for Expedited Discovery upon Defendants as immediately as possible.
7. The information discovered in response to the inspection and copying permitted herein shall be used by Plaintiff solely for the prosecution of its claims, and for no other purpose whatsoever, unless and until the Court orders otherwise.
Summary
In this chapter we looked at example language for various methods of discovery for computers and storage media. Included in this chapter was information covering a consent to search form, a simple order for discovery, and an order that includes language to protect the evidence prior to discovery by restraining the receiver of the order from destroying evidence.
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