Robinett v. CLA Incorporated et al
AGREED PROTECTIVE ORDER Regarding Forensic Examination of th Plaintiff's Computer. Signed by Judge James M. Moody on 2/14/12. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NO. 4: ll-CV-670JMM
Individually and d/b/a
AGREED PROTECTIVE ORDER REGARDING FORENSIC EXAMINAITON
OF THE PLAINTIFF'S COMPUTER
The Plaintiff, Sirina Robinett, brings the present action against the Defendants,
c.L.A. Incorporated, d/b/a Subway/Pizza Pro and Alan Covington and Michelle
Covington, individually and d/b/a Subway/Pizza Pro, alleging violations of the Fair Labor
Standards Act, 29 U.S.c. § 201, et seq, and the Arkansas Minimum Wage Act. The
Defendants employed the Plaintiff in the Defendants' restaurant business, and the Plaintiff
contends that the Defendants required her to work off the clock without compensation.
This contention forms the basis for the Plaintiffs Complaint. One of the Plaintiffs specific
contentions is that the Defendants required her to watch real-time video feeds over the
internet from one of the Defendants' restaurants while the Plaintiff was at home and off the
clock. The Plaintiff contends that she watched the video on her personal laptop computer
(Acer brand id # as5630-6288) (the "computer") and was able to do so because she loaded a
program on the computer that was made available for download by the surveillance system
vendor for this purpose. The Plaintiff further contends that the viewing software retains
information regarding log-in dates, times, and durations of log-in status; there may be other
information on the computer as well (such as browser cache files) that the parties may
contend is relevant to their claims and defenses (the "data"). The surveillance company has
no information regarding the Plaintiff's alleged use of the viewing software. The Plaintiff,
through her counsel, represents that the computer can be turned on to display the viewing
program icon but that the program is no longer boatable so that the viewing software
cannot be accessed. The Defendants want to verify, if possible, the existence of the viewing
software on the computer and to determine if the data is recoverable. The Defendants have
requested that the Plaintiff make the computer available for forensic imaging of the
computer's hard drive, and the Plaintiff has agreed to such an examination at the
Defendants' expense. For the foregoing reasons, the parties agree to the entry of this
protective order and to the terms stated herein.
LEGAL STANDARD - PROTECTIVE ORDER
Under Fed R. Civ. Proc. 26(c), the Court may Issue protective orders during
discovery, including an order "forbidding the disclosure or discovery," "specifying the
terms, including time and place, for the disclosure or discovery," "forbidding inquiry into
certain matters, or limiting the scope of disclosure or discovery
certain matters." Fed. R.
Civ. P. 26(c). The Supreme Court has interpreted Rule 26(c) as conferring "broad
discretion on the trial court to decide when a protective order is appropriate and what
degree of protection is required." Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 104 S. Ct.
2199 (1984). The data is potentially relevant in this case, and the Defendants are entitled
a fair opportunity to discover the existence and recoverability of the data. The Plaintiff, in
turn, is entitled to protection of her personal and confidential information on the computer
that is not related to or relevant as evidence to the matters alleged in her Complaint in
order to avoid unwarranted disclosure of such information. Therefore, the Court, in
consideration of the premises contained herein concludes and orders as follows:
A computer forensic expert selected by the Defendants (the "expert") shall
execute the confidentiality agreement attached hereto as Exhibit "A" and shall abide by this
The Plaintiff shall make the computer available to the expert at its place of
business by overnight shipment at the Defendants' expense. The Defendants' undersigned
counsel shall provide the shipping address to the Plaintiff's counsel. The expert will return
the computer to the Plaintiff's counsel promptly after the hard drive has been imaged and is
no longer necessary for recovery of the data.
The expert may not remove the computer from its premises. Moreover, only
the expert and the expert's employees assigned to this project are authorized by this order to
inspect or otherwise handle the computer. Neither the Defendants nor the Defendants'
counsel will handle the computer. The expert will maintain all programs, files, images,
documents, and information on the computer, including the data ("protected materials") in
the strictest confidence and shall maintain a copy of the mirror image of the computer's
hard drive and the protected materials until 60 days after the conclusion of this litigation.
Upon notice to the expert that the litigation is concluded, the expert shall destroy the
mirror images, the protected materials, and the media containing the same, unless the
Plaintiff requests that these items be transferred
her, at her expense.
Promptly after imaging the computer, the expert shall provide the
Defendants' counsel with a report describing the computer and the contents recovered from
the hard drive. The Defendants' counsel, but not the Defendants or their employees, may
discuss the contents of the recovered hard drive with the expert in order to ascertain if data
exists in a recoverable form and, if so, how best to produce the data for use in this litigation.
U1timately, the expert shall provide the relevant data to the Defendants' counsel in a
reasonably convenient and searchable form along with, to the extent possible, the
information showing when any files were created, accessed, copied, or deleted, and the
information about the deletion and the contents of deleted files that could not be recovered.
The Defendants' counsel shall provide to the Plaintiff's counsel the report
described above as well as the recovered data. The Defendants' counsel shall disclose to the
Defendants or their employees and agents only that data which counsel stipulate pertains to
the present case. If the parties cannot agree on the scope of relevant data, either party may
submit the data to the Court for in camera inspection to determine what may and may not
be disclosed. The stipulation, if any, is not to be construed as a stipulation of relevance or
admissibility of the data, and all such objections are reserved by all parties.
After the Defendants' counsel provided the Plaintiff's counsel with the report
and data, as described above, the Plaintiff may solicit additional information from the expert
regarding the data at her expense. Because the expert is the Defendants' expert and a
potential witness for the Defendant, the Plaintiff or the Plaintiffs counsel cannot
communicate directly with the expert except with permission of the Defendants' counselor
in the presence of the Defendants' counsel.
In the event that the computer is lost or damaged during transport to or from
the expert as a part of this forensic evaluation or is otherwise incapable of forensic
examination and recovery, then no party to this action can argue any inference against the
other party based upon the loss of the computer or the inability to recover the data. Loss of
or damage to the computer during transit or during the forensic examination does not
prevent the Plaintiff from testifying as to the contents of the computer or her use of it based
on her personal knowledge. The parties agree that the following stipulation can be read to
the jury in the event that the computer is lost or damaged in the course of the
transportation or examination of the computer, to the extent that the computer will no
longer boot to the extent that it did prior to the examination:
Ladies and gentlemen of the Jury, the Plaintiff contends that she used her
personal laptop computer to perform off-the-clock work for her employer.
She contends that she used programs on the computer for this purpose called
"Multicam 3.40" and "Remote Viewlog 3.40". Because the computer has been
damaged through no fault of either party, it is not available for use here in
court. Therefore, the parties stipulated that the programs, "Multi cam 3.40"
and "Remote Viewlog 3.40", were on the computer before it was damaged
but that the programs were inoperable at the time the computer was
damaged. This stipulation is not an admission by the Defendants that the
Plaintiff used the computer to perform work and should not be considered by
you as evidence that the Plaintiff used the computer for work. The Plaintiff
has the burden of proving the amount of work she performed for the
Defendants without compensation.
Notwithstanding the foregoing stipulation, the Defendants reserve all objections to
introduction of evidence about, related to, or recovered from the computer.
Notwithstanding the forensic evaluation contemplated by this Agreed
Protective Order, the burden remains with the Plaintiff to prove that she used the viewing
software and the amount of time she claims to be uncompensated work by the use of the
software. Loss of or damage to the computer or the inability to recover data from the
computer does not alter the Plaintiff's burden of proof.
By initiating this forensic examination of the computer, the Defendants do
not waive any contention or argument regarding the Plaintiff's alleged use of the viewing
software, including the Plaintiff's contention that the viewing software was not useable at
the time the forensic examination was requested by the Defendants or before the computer
were damaged in the course of the forensic examination.
IT IS SO ORDERED.
United States District Judge
FUQUA CAMPBELL, PA.
Attorneys at Law
425 West Capitol Avenue, Suite 400
Little Rock, Arkansas 72201
s for the Defendants
By: David M. Fuqua
SANFORD LAW FIRM, PLLC
ONE FINANCIAL CENTER
650 S SHACKLEFORD STE 400
LITTLE ROCK., Arkansas 72211
PHONE: (SOl) 221-0088
FACSIMILE: (888) 787-2040
. iX: . /
Attorney for the Plaintiff
CONFIDENTIALITI AGREEMENT OF THE EXPERT
The undersigned individual, described in the Court's protective order as the "expert"
states that he has read the order and, in consideration of his being hire for a fee to conduct a
forensic examination of the computer agrees:
The expert will abide by the terms of the protective order in all of its
particulars and agrees to submit himself to the jurisdiction of the Court for purposes of
enforcement of the protective order and this confidentiality agreement.
The expert will keep the contents of the computer hard drive confidential and
will not disclose or discuss the information recovered from the hard drive with anyone
except as provided by the terms of the protective order.
Name: _ _ _ _ _ _ _ _ _ __
Title: _ _ _ _ _ _ _ _ _ __
Company: _ _ _ _ _ _ _ __
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