Judge Orders Forensic Examination of ATTORNEY’s hard drive
Commercial Law Corp. v. FDIC, No. 10-13275, 2012 U.S. Dist. LEXIS 51437 (E.D. Mich. Apr. 12, 2012)
The Plaintiffs in the above captioned case were attorneys attempting to recover attorney’s fees for services rendered to a bank before the bank was taken over by the FDIC in receivorship. Plaintiff asserted that it had valid liens on two branches of the bank, and that documents relating to these liens were executed by the bank on November 1, 2009, five days before the bank went into receivership.
Plaintiff had sent an email in January 2010 to the bank’s board of directors containing draft lien documents. This email had been produced in discovery, and the attachments were not signed by either plaintiff or the bank’s directors.
Defendant contended that it had reason to believe that the lien documents were prepared in January, 2010, after the bank had gone into receivership, and sought a forensic image of the plaintiff’s hard drive to determine when the documents were created. The magistrate judge granted defendant’s motion to compel plaintiff to produce the forensic image, setting forth detailed instructions on the process in order to protect plaintiff’s privileged files.
The district court rejected plaintiff’s arguments that a finding of actual fraud was necessary in order to compel the forensic search. The court stated that “[i]f the Court had before it ‘actual proof of an alleged fraud,’ as Plaintiff contends is required for the Court to grant the computer inspection, the forensic search of Plaintiff’s computer would serve no purpose.” Nevertheless, “extraordinary circumstances” existed which justified the forensic search.
The date that the Plaintiff executed the lien was “clearly relevant to a defense against Plaintiff’s attorney lien claim.” Rule 26’s limitation on the discovery of nonprivileged material was followed by the magistrate’s detailed instructions which were designed to protect the privileged material. The request for the image was based on more that a mere “hunch.” The FDIC had reason to believe that the documents were created at a later date and then backdated.
The fact that defendant had not originally requested metadata in its initial discovery requests was not dispositive, as defendant did not learn of the existence of the January email until it deposed the recipient of the email, well after the submission of the initial discovery requests.
The district court accordingly overruled plaintiff’s objections to the magistrate’s order.
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5 / 31 / 2012 11:30 pm
When I saw the title I got nervous and I am not a lawyer.
Great Title!
1 / 12 / 2013 3:38 am
I decided to web-search for anything related to “warrant backdating” and found this posting.
Funny, in this nation, other than this posting, the only references to backdating are related to the SEC options backdating scandal and Indian law (not developed well yet in that country).
I discovered firsthand six years ago the crookedness of the criminal “justice” system in a case where I was pulled from my home at gunpoint with no warrant presented or left. A warrant is referenced in the trophy press-release at the next publication opportunity, but one was not seen by me until six months after the incident.
My attorney committed malpractice and collusion in order to protect police and their pursuit of retaining money seized from me (money legal and provable as such).
In the Banana Republic of Louisiana our jurisprudence allows police not to even be required to present a warrant (officer safety by prioritizing a “protective sweep” and such), police do not even have to have a warrant in their possession (“misplacing” of the warrant is accepted), the affidavit is not required to be affixed to said warrant, and many other travesties.
As relates to the content of this blog, in this new millenium, the digital age, there is no reason for there not to be a digital paper trail of so-proffered warrant documents, and there should be video of the execution of said warrant. This will be a long time coming; legislative lawyers don’t want to impede the revenue flow.
But the public is getting wise.
Just thought you would appreciate my take. I do not hate lawyers, judges, and police; I just think they are all liars and crooks. Sorry if that offends anyone, but if the shoe fits… (nothing rhymes with acquit).
Oh yes, “qualified immunity.” This is a real miscarriage vehicle in the cover-up efforts.
One more thing: read the case State v Barrilleaux, 620 So. 2d 1317. This case law also shrouds illegal activity; the later-composed warrant claimed can now perform such functions as allowing illegal police activity to actually be omitted, with the explanation of “lack of knowledge.” Notice how the focus just went from no warrant at all to a warrant being improperly applied for. Show knowledge at your door by requesting a warrant and the “lost warrant” case kicks in.
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