Electronic Discovery Law

Playboy Ent., Inc. v. Welles, 60 F.Supp.2d 1050 (S.D. Cal. 1999)

After a third party produced email communications between itself and defendant, plaintiff followed up with defense counsel to inquire why the emails had not been produced by defendant. During the meet and confer discussions, plaintiff learned that defendant had a custom and practice of deleting emails shortly after she sent or received them, regardless of their content. Plaintiff sought access to defendant's hard drive for the purpose of recovering emails that may be relevant to the litigation.

The court found that it was likely that relevant information was stored on the hard drive of defendant's computer, since she used her email system for business (and personal) communications. 60 F.Supp.2d at 1053. The court required plaintiff to pay the costs associated with the information recovery, and set forth a protocol to protect defendant's privacy and attorney-client privilege. In order to minimize the interruption to defendant's business, the court ordered that the work be coordinated to accommodate defendant's schedule as much as possible.

The court's protocol required the following:

• Plaintiff to submit a declaration from its expert demonstrating that recovering some deleted email was just as likely as not recovering any deleted email, and that no damage would result to defendant's computer.
• Assuming expert declaration was sufficient, court to appoint a computer expert specializing in the field of electronic discovery to create a mirror image of defendant's hard drive. Parties to meet and confer to agree upon the designation of the expert; if no agreement reached, parties to submit suggested experts and the court to choose.
• Court appointed computer specialist to serve as an officer of the court. To the extent it has access to information protected by the attorney-client privilege, such "disclosure" will not result in a waiver of the attorney-client privilege; plaintiff barred from arguing same. Computer specialist to sign protective order. Any communications between plaintiff's counsel and computer specialist as to payment to be produced to defense counsel.
• Parties to agree on date and time to access defendant's computer. Plaintiff to defer to defendant's personal schedule in selecting date. Only defendant and her counsel may be present during hard drive recovery.
• Mirror image created to be given to defense counsel, who will print and review any retrieved documents and produce responsive documents or, if withholding a document, record such in a privilege log.
• Defense counsel to maintain mirror image disk and copies of all documents retrieved throughout the course of litigation. To the extent that documents cannot be retrieved, or only partial documents are capable of being retrieved, defense counsel to submit a declaration together with a written expert report explaining the limits of retrieval achieved.

Id. at 1054-55.