Case Study
FTI Technology Serves as Neutral Third Party Expert in Technology Industry Intellectual Property Litigation
During the discovery phase of an alleged theft of trade secret litigation between two technology companies, parties contended with a search and production protocol relating to confidential information, trade secrets, personal data and highly complex metadata in the set of potentially relevant documents. The district court appointed FTI Technology as the neutral third party expert charged to handle execution of the court ordered search protocol involving the analysis and extraction of forensic artifacts at scale beyond the corpus of custodian communications and work data, to determine which items should be turned over to opposing counsel, and which contained sensitive information that should be withheld. The findings helped the parties reach a settlement.
Situation
The case centered on a dispute over whether a group of employees who had departed from the plaintiff organization took IP and other confidential data with them when they were hired at the defendant organization. More than 35TB of data was collected as part of discovery, spanning the custodians’ personal cloud accounts, emails, computers, mobile phones, tablets, personal servers and more.
Throughout the discovery process, concerns were raised by both parties about the risk of additional trade secrets, privileged information, or custodians’ personal data becoming exposed when producing documents to plaintiff’s counsel. The plaintiff company agreed to cover all costs relating to discovery, to avoid arguments of undue burden from the defendant, which ultimately led to the need for a neutral third party as an intermediary to protect sensitive data.
Among FTI Technology’s duties as the neutral expert was to ensure no sensitive information was wrongly transferred between parties. Parties negotiated a strict protocol for how FTI Technology’s experts would approach the analysis, which defined the search parameters, guardrails to protect confidentiality, digital forensic methodologies, approved forensic and analysis tools, production formats, and more.
In addition to the rigor and scrutiny across every phase of the case, FTI Technology’s teams also had to overcome numerous technical challenges relating to the data formats specified in the search protocol. The protocol required that certain custom files, formats and metadata, which were unsupported by existing forensic and discovery tools, be included in the analysis and production at scale. Central to the appointment of FTI Technology as the neutral expert was the team’s digital forensics knowledge, skill and ability to build a custom workflow to reveal and analyze proprietary metadata in a completely novel way.
Our Role
FTI Technology filed the court-appointed document of search (outlining the agreed protocol) with the court and set up the environments to receive the 35TB of data from both parties, including more than 100 media images from the custodians’ devices. Once the data was transferred, the team of digital forensics investigators initiated the custom workflow to bridge the gaps between the capabilities of the tools and the data requirements outlined in the protocol.
This addressed the requirement for discovery to include review of various metadata attributes on Apple Spotlight databases from macOS computers belonging to the custodians. Within macOS, Spotlight serves as an immense database and index across more than 200 datapoints saved as backend tracking of activity on the computer. It includes information about when files are created and accessed, how the user accesses them (opens, downloads, printouts, etc.), related email attachments, historical information about files, among others.
Given that the totality of attributes from the Spotlight database were not supported by discovery and commercial digital forensic tools, FTI Technology developed a custom solution to access and produce specific data attributes from Spotlight, despite that doing so was not possible with the standard functionality of the tools approved in the protocol.
Our Impact
FTI Technology’s experts provided counsel on both sides of the litigation with the data and documents needed to resolve the case, while maintaining complete confidentiality for all sensitive information and IP belonging to the plaintiff and the defendant. The parties ultimately settled.
FTI Technology implemented the district court ordered protocol by using custom workflows to scale the enormous volume of collected data.