Top 5 Ediscovery Case Summaries - December 2013: Idaho: Court Orders Seizure of Hard Drive to Preserve Self-Identified Hacker’s ESI

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Battelle Energy Alliance, LLC v. Southfork Sec., Inc., 2013 WL 5637747 (D. Idaho Oct. 15, 2013).

In this copyright infringement case, the plaintiff sought an ex parte temporary restraining order forcing the defendants to shut down their website and also sought to seize a hard drive from the defendants to ensure the preservation of data. The Department of Energy commissioned the plaintiff to develop a computer program aimed at protecting the national energy infrastructure from cyber attacks. A former employee of the plaintiff, and individual defendant in this case, who had helped develop that program, created a similar and allegedly infringing “open source” version while on professional leave which was available on the defendant’s website. While the court quickly determined that a temporary restraining order was warranted, it then asked whether this was one of the “extremely limited” cases that justify issuing the order without notice to the defendants, and whether a forensic image was warranted. The defendants self-identified as “hackers” on their website, and the plaintiff argued that a well-known characteristic of hackers is to cover their tracks, in this case dispose of evidence, so the court granted the temporary restraining order without notice and seized the defendant’s hard drive.