From Pacer:
PROTECTIVE ORDER REGARDING COPYING AND INSPECTION OF DEFENDANT GARY DOBRY’S COMPUTERS
Pursuant to Magistrate Judge Levin’s Order of November 14, 2001 granting plaintiff Richard Marchese’s (“Marchese”) motion to compel the inspection and copying of certainn computers owned by defendant Gary Dobry (“Dobry”), the Court hereby orders the following procedures to be used regarding the inspection and copying of those computers and the treatement of any and all data and/or information obtained as part of the inspection and copying.
1. This inspection process applies to the following computers: Gateway Essential Pentium III, Serial No. 0018044340 located at Dobry’s home; Acer Power Pentium, Serial No. 4200065150 located at Pug’s Boxing & Fitness Center, Inc. these computers were identified by Dobry in his Answer to Interrogatory No. 1 of marchese’s First Set of Interrogatories, dated January 2, 2001, as all computers he has used to post messages on any message boards, send electronic maiil, or enter chat rooms on the Internet. Dobry shall certify within 24 hours of the entry of this Order whether he is or has been in possession or control of computers which he has used to post messages on any message boards, send electronic mail or enter chat rooms on the Internet not previously identified in his Answer to Interrogatory No. 1 of Marchese[‘s] First Set of Interrogatories. This Order for Inspection shall apply to any additional computers identified by Dobry as aforesaid.
2. Pursuant to Marchese’s designation, Jonathan D. Bobb, CPA, of Rome Associates, LLP, and designated assistants also employed by Rome Associates (“Designated Assistants”) shall carry out the inspection and copying of data from Dobry’s designated computers. From the date of this Order, all communications between Bobb or his Designated Assistants and Marchese’s counsel shall take place either in the presence of Dobry’s counsel or through written or electronic communication with a copy to Dobry’s counsel.
3. Within 24 hours after the entry of this Order, Bobb or his Designated Assistants will provide Dobry’s counsel with certification that neither Rome Associates nor Bobb, have, to the best of their knowledge, provided any services to Marchese, Amazon Natural Treasures, Inc., Robert Leslie Deak, Art Perera, Deak Perera Capital markets, Deak International and/or Deak-Perrera prior to their involvement in the instant case. Any prior services provided by Rome Associates and/or Bobb to the foregoing individuals and entitites shall not be a basis for objecting to the designation of Rome associates, Bobb and his Designated Assistants to provide the services set forth in this Order.
4. Before carrying out any inspection pursuant to this Order, bobb and any Designated Assistants shall execute an agreement to be bound by the Stipulated Protective Order previously entered in this action and deliver a signed copy to Dobry’s counsel and shall sign a statement acknowledging receipt of this Order.
5. On or before January 11, 2002, Dobry shall make available at either his residence or at Pugs’s Boxing & Fitness Center, Inc. all designated computers for inspection and copying by Bobb and/or his Designated Assistants. At that time, bobb and/or his Designated Assistants shall inspect Dobry’s designated computers and create an exact copy or “mirror” of the hard drives of those computers. No representatives of plaintiff may be present. To the best ability of all parties and to the extent that it does not interfere with Bobb’s necessary work, the inspectioin shall be carried out to minimize disruption of and interference with Dobry’s business, and Dobry and his counsel shall cooperate in providing access to the designated computers as provided for in the Court’s prior order.
6. On or before January 25, 2002, Bobb and/or his Designated Assistants shall recover from the designated computers all data, documents, information, files or any other contents of the computers referring to, reflecting on or containing the following:
(a) any statements made on any Internet message board, website or chat room from the designated computers which relate to, refer to, mention, identify or otherwise concern Richard Marchese.
(b) any electronic mail messages, “Instant messages,” or other communications sent or received at the designated computers which refer to, mention, identify or otherwise concern Richard Marchese.
The recovery work engaged in by Bobb and/or his Designated Assistants shall also include recovering and identifying documents, files, data or other information in the foregoing categories which have been “deleted”. Furthermore, Bobb and/or his Designated Assistants shall determine whether contents of the hard drives of the designated computers have been erased, altered, deleted or otherwise cleaned of documents, data, information, and files since December 8, 2000, the date on which Dobry was served with the Request for Inspection of Computers which is the subject matter of Magistrate Levin’s November 14, 2001 Order.
7. On or before January 28, 2002, Bobb and his Designated Assistants shall provide documents and information set forth in paragraph 6 above to defendant’s counsel only, along with, to the extent possible, (a) information showing when any recovered “deleted” files were deleted, and (b) information about the deletion of deleted files that could not be recovered.
8. On or before February 2, 2002, Bobb shall provide counsel for Dobry and counsel for Marchese with the report setting forth the scope of the work performed and describing in general terms (without disclosing the contents) the volume and types of records provided to defendant’s counsel as well as the information set forth in subsections (a) and (b) of paragraph 7 of this Order.
9. On or before February 15, 2002, Dobry’s counsel shall review the records for privilege, shall appropriately supplement his response to previously-served discovery requests, and shall send by overnight delivery to Marchese’s counsel all responsive and non-privileged documents and a privilege log reflecting which documents were withheld pursuant to the attorney-client privilege or work-product immunity.
10. After Bobb supplies the report set forth in paragraph 8 of this Order, he shall seal or otherwise isolate the data recovered from Dobry’s computers in all forms (electronic and paper) and secure it free from any further examination, except upon further order of court. On or before thirty (30) days after either a judgment becomes final and non-appealable or a settlement agreement has been executed by both parties, Bobb shall destroy the records copied from the designated computers and shall confirm such destruction to the satisfaction of Dobry.
Entered:
Ian H. Levin
Magistrate Judge Levin
Dated: December 28, 2001 |
