Electronic Discovery Law
Plaintiff Wins Early Order for Preservation, Expedited Discovery, and Forensic Examination
Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645 (D. Minn. 2002)
Plaintiff sued former consultant and competing company for copyright infringement and unfair competition. Prior to any pretrial conference or entry of a scheduling order, and before any formal discovery had commenced, plaintiff moved for the entry of a preservation order, expedited discovery, and the appointment of a neutral computer forensics expert for the purposes of copying defendants' hard drives.
The basis for all three motions was the plaintiff's belief that the defendants may destroy relevant documents, inadvertently or intentionally. 210 F.R.D. at 649. The defendants had appeared pro se, and plaintiff noted that they might not appreciate their duty to preserve evidence under the rules of procedure. Plaintiff also presented some evidence that the defendants might be going out of business in the near future.
The court entered a preservation order, which the defendants did not oppose, and ruled that expedited discovery was appropriate in part to ensure that computer records were preserved. Id. at 650. The court also granted plaintiff's motion to appoint a neutral computer forensics expert to make copies of defendants' hard drives and retrieve deleted data. It noted that plaintiff had proffered "some evidence that the Defendants use e-mail as a form of communication for their business," and that the defendants had not denied that use. Id. at 651. The court also highlighted the affidavit of plaintiff's expert, in which he testified that "data which is deleted from a computer is retained on the hard drive, but is constantly being overwritten by new data, through the normal use of the computer equipment." Id. From these submissions, the court concluded:
Defendants may have relevant information, on their computer equipment, which is being lost through normal use of the computer, and which might be relevant to Plaintiff's claims, or Defendants' defenses. This information may be in the form of stored or deleted computer files, programs, or e-mails, on the Defendants' computer equipment.
Id. at 652. In its discussion of legal precedents, the court noted that "it is a well accepted proposition that deleted computer files, whether they be e-mails or otherwise, are discoverable." Id. Without discussing any specific evidence alleged to have been deleted, and apparently not requiring any such particularized showing from plaintiff, the court concluded that deleted information on defendants' computer equipment "may well be both relevant and discoverable." Id. It ruled that the plaintiff "should be able to attempt to resurrect data which has been deleted from the Defendant's computer equipment," and granted the motion to appoint an expert. Id. The court's order applied only to deleted information on defendants' computer equipment; the defendants remained responsible for producing computer information otherwise accessible from their computers. Id. at 653 n.7. The plaintiff would bear the cost of recovering the deleted computer data. Id. at 652 n.6.
The court went on to fashion a protocol based on those employed in Playboy Ent., Inc. v. Welles, 60 F.Supp.2d 1050 (S.D. Cal. 1999) and Simon Prop. Group L.P. v. mySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000): The plaintiff would select an expert in the field of computer forensics, and defendants would make their computer equipment available to the expert at defendants' place of business at a mutually agreeable time. The expert was to use his best efforts to avoid unnecessarily disrupting defendants' business operations. Only the expert and expert's employees would be allowed to inspect or handle the equipment, and they would maintain the information in the strictest confidence. Within ten days of the inspection and copying, the expert would prepare a report as to what computer equipment was produced and the actions taken by the expert with respect to each piece of equipment; the expert would maintain the chain of custody for any copies or images. Id. at 653.
The expert would then produce two copies of the data retrieved from the hard drives, one for the court and one for the defendants. "Thereafter, once [plaintiff] propounds any discovery requests, the Defendants will sift through the data provided by the Expert to locate any relevant documents." Id. The court directed the parties to meet and confer on an appropriate time for the expert to access defendants' computer equipment.
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