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On February 20, Judge Hugh Scott of the Western District of New York issued an opinion with some significance for case law on best practices in preparing forensic images. In United States v. Rodriguez, 2018 U.S. Dist. LEXIS 26963,0" a mortgage fraud case he declined to rule on a defendant’s motion to compel the production of a hard drive. He did however comment on the government’s accusation that it was an irrelevant discovery motion used as a delaying tactic. Citing the Western District of Georgia’s decision in United States v. Sharp and other authorities, Judge Scott stated that, “ the Burford hard drive as it was in 2013 no longer exists, because a failure to create a forensic image [*24] has changed the hard drive's metadata forever; that, in turn, has raised some questions about whether alterations to the hard drive's contents have occurred since 2013. How much the law enforcement agent's error matters remains to be seen. See, e.g., United States v. Heiser , 473 F. App'x 161, 166 (3d Cir. 2012) (unpublished opinion) (destruction of digital evidence requires bad faith before it rises to a due process violation). But an error it was, and pointing it out is hardly "irrelevant."”
Good to see the court’s awareness of how copying data can alter it. It’s a good tip that calling out a party on the failure to forensically Image a drive can buy you some time.