Time for Court-Appointed Computer Forensics Technicians?

When U.S. Magistrate Judge John M. Facciola issues an opinion concerning e-discovery, litigators take notice. Judge Facciola, whose opinions may signal new directions in e-discovery law, was the author of McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001), in which a marginal utility test was devised to decide whether the government should be required to restore backup tapes at the government’s costs. McPeek may be viewed as the first significant analysis concerning sharing the costs of e-discovery. 
 
Judge Facciola recently decided in Peskoff v. Faber, 244 F.R.D. 54 (D.D.C. 2007), that he would oversee a process for obtaining proposals from qualified forensic computer technicians for examination of computers for backed-up email. He may have signaled that courts in the future will hire their own computer experts to evaluate the claims of parties concerning the utility and costs of obtaining relevant digitized evidence.
 
In Peskoff, Judge Facciola ordered counsel to "collaborate" with the court in seeking bids from qualified forensic computer technicians to determine the cost to conduct a forensic examination of computers and a server used by plaintiff's former employer. He explained the court’s personal involvement in the bid process by noting that it had "neither the time nor the patience for another intramural battle" among the parties and their lawyers.   

Judge Facciola concluded that under Fed. R. Civ. P. 26(b)(2)(C) as amended effective December 1, 2007, the court had to decide whether the burden of production of additional data from a server and several hard drives was justified by potential relevancy of the information being sought. Counsel for the parties thus were ordered to draft a request for proposals from forensic computer technicians so that the cost of a search could be determined. The court then would decide whether a search should proceed and at whose cost.
 
Judge Facciola’s willingness to take part in the hiring of computer forensic “technicians” raises an interesting e-discovery issue. In making e-discovery decisions which in some circumstances may be case-determinative, should the courts have their own computer forensics technicians to advise the courts and the parties on technical e-discovery questions? 
 
Unlike traditional experts who provide subjective opinions based on available data, computer forensics technicians provide objective information on the handling of data. Theoretically, there should be no need for competing technical analyses from the parties. Analyses from technicians appointed by and paid for by the courts should reduce concerns regarding objectivity of the technicians and allow more equal access to relevant evidence for those litigants less able to afford the costs of computer forensics.