Law & Forensics Files Amicus Brief Before Delaware Supreme Court
by Director of Press & Marketing
Law & Forensics, joined by the Organization of Legal Professionals and Security Mentors LLC, filed an amicus brief before the Supreme Court of Delaware in the matter of TR Investors v. Genger. The case itself is not extraordinary – but the technological mistakes and missteps by the trial court (the Delaware Court of Chancery) are. The Court of Chancery issued sanctions against defendant Genger for wiping the unallocated space after a court-endorsed encryption process. The Chancery Court was even more confused than it appeared, as it set down a rule essentially stating that a party must preserve the unallocated space at the onset of a lawsuit, effectively forcing businesses to shut down while they create duplicates of entire hard disk drives.
The trial court believed that “unallocated space” – areas on a hard drive that are either empty or contain deleted items – is a “backstop reservoir” for documents and files. The amicus brief explains that this idea is not true – unallocated space is more like a trashcan filled with shredded confetti. Furthermore, when an encryption process is run – creating encrypted copies of previously unencrypted documents – unencrypted files and file fragments are stored in the unallocated space.
Law & Forensics, the Organization of Legal Professionals, and Security Mentors hope that our brief “sets the record straight” on unallocated space and encryption processes. We also urge the Supreme Court of Delaware adopt a bright-line rule stating that routine preservation orders should not be construed to include unallocated space unless the facts and notions of proportionality and relevancy so dictate and the requirement to preserve unallocated space is explicitly stated.