In SONY BMG Music Entertainment v. Tenenbaum the Court has ruled that the RIAA may obtain a hard drive inspection of the defendant's Gateway desktop computer but not of the defendant's Toshiba laptop computer.
The Court also granted a protective order controlling the procedure for the hard drive inspection, which provided as follows:
1. Plaintiffs shall select a computer forensic expert of their choosing to produce a mirror-image of the Gateway computer's hard-drive.The order further provided:
2. The Expert and any assistants assigned to the computer inspection shall execute a Confidentiality Agreement agreed to by the parties and shall sign a copy of and abide by the Protective Order in place in this action.
3. The Defendant shall make the Gateway computer available to the Plaintiffs'
Expert at his counsel's office at a mutually agreeable time within 10 business days of the approved Protective Order. The Expert shall make a mirror-image of the Gateway computer's hard-drive, a process which should require no more than
several hours. He or she may not remove the Defendant's computer from the
4. Only the Expert and his or her assistants assigned to this project are authorized to inspect, or otherwise handle the Defendant's computer or the mirror-image generated. No employee of the Plaintiffs, or their counsel, will inspect or
otherwise handle the mirror-image produced. The Expert will also maintain all
information in the strictest confidence. Furthermore, the Expert will maintain a
copy of the mirror images and all recovered data and documents until 60 days
after the conclusion of this litigation.
5. The Expert shall examine any recoverable file-sharing data on the mirror-image, including electronic records generated by file-sharing software and "metadata" associated with music files. Recoverable data includes 'deleted' files that no longer appear in the operating system's directory.
6. The Expert shall not examine any non-relevant files or data, including those
belonging to the following categories: emails, word-processing documents, PDF
documents, spreadsheet documents, image files, video files, or stored web-pages.
On their face, none of these types of electronic files appear to have any
established relevance to Tenenbaum's use of file-sharing software or allegedly
infringing activities. As an added precaution, the Defendant shall also be
permitted to designate any attorney-client communications or privileged workproduct files in a Privilege Log provided to both the Expert and the Plaintiffs' counsel prior to inspection. These files shall be immediately deleted from the mirror-image by the Expert and, under no circumstances, may they be opened or their contents examined by the Expert.
7. Based on this inspection of the mirror-image, the Expert shall produce a report
which describes the music files found on the computer and any file-sharing
information associated with each one, as well as any other records of file-sharing
activity. The report may also address any evidence that the hard-drive has been
"wiped" or erased since the initiation of this litigation.
8. The Expert shall disclose this report only to the Defendant's counsel, who will
have five business days to lodge any objections to the report based on privilege.
Any such objections shall first be communicated in writing to Plaintiffs' counsel.
If the parties cannot resolve any dispute themselves, the Plaintiffs shall file a
Motion to Compel the production of the Expert's report. If there is no dispute, or
the parties reach an agreement themselves, the Defendant shall promptly disclose the Expert's report to the Plaintiffs.
9. In resolving any Motion to Compel, the Court may require the Defendant to
submit the Expert's report for review in camera.
Before this discovery proceeds, a Protective Order consistent with these terms must be submitted for the Court's approval by the Plaintiffs. After that approval, the parties shall promptly meet and confer to determine the contents of the confidentiality agreement and an appropriate time, within ten business days, for the Expert to access the Gateway computer for mirror-imaging.
Unlike the protective order (pdf) in SONY BMG Music Entertainment v. Arellanes, this protective order permits the RIAA to unilaterally select whatever expert it chooses, rather than an independent, mutually agreeable, expert.
May 6, 2009, Protective Order
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