Ferenbach, Cam, United States Magistrate Judge
In case involving alleged violations of the Computer Fraud Abuse Act (CAFA) and state unlawful computer access statutes, trial court held that good cause existed to conduct expedited discovery and granted plaintiff’s motion to order mirror imaging of defendants’ computers.
Defendants’ employment was terminated by plaintiff-employer after allegedly discovering defendants were accessing plaintiff-employer’s computer servers to acquire confidential information concerning employees and manipulating data to change company financial records. One of the defendants subsequently filed a complaint against her former employer (plaintiff in this action) because of her termination. In that action, the employer became aware that the former employees were accessing its computer servers and subsequently brought claims alleging violations of the above mentioned CAFA and state-law statutes.
Plaintiff-employer alleged defendants had accessed and deleted, moved, or copied electronic data from plaintiff’s computer servers. Plaintiff also alleged that one of the defendants, plaintiff’s former management information systems director, had created a “back door” to the company server, using it to gain access to sensitive information stored on plaintiff’s computer servers. Due to defendants’ alleged history of tampering with plaintiff’s servers, plaintiff asked the court to order defendants to: (1) preserve all electronic evidence; (2) enjoin any spoliation of electronic data; and (3) authorize the mirror-imaging of defendants’ computers.
Pursuant to Federal Rule of Civil Procedure 26(d), the court found “good cause” existed to conduct expedited discovery because defendants allegedly had “access to plaintiff’s computer server, defendants [had] been deleting files and relevant evidence, and that evidence of their conduct, which is central to the litigation, w[ould] be erased through normal use of defendants’ computer.”
The court also held that a preservation order was not warranted, and defendants did not have to cease using their computers. But defendants did have a duty to preserve all electronic evidence. Finally, pursuant to Federal Rule of Civil Procedure 26(b)(2), the court held that a mirror-imaging order of defendants’ computers was warranted.
In doing so, the court relied on the five-factor test used in Playboy Enter., v. Welles, et. al., 60 F. Supp. 2d 1050 (S.D. Cal. 1999), which considers: “(1) the needs of the case; (2) the amount in controversy; (3) the importance of the issues at stake; (4) the potential for finding relevant material; and (5) the importance of the proposed discovery in resolving the issues.” The court found that all five factors weighed in favor of a mirror-imaging order and “the plaintiff’s need to create a mirror-image of defendants’ computers outweigh[ed] the burden on defendants.”
v.
Aimee Lynn ALTERWITZ, et al., Defendants
Counsel
F. Christopher Austin, Laraine M.I. Burrell, Las Vegas, NV, for Plaintiff.Ryan L. Dennett, R. Vaughn Gourley, Stephens, Gourley & Bywater, Las Vegas, NV, for Defendants.