Electronic Discovery Law
Judge Denies Forensic Search of Employer's Information Systems to Confirm "Highly Speculative Conjecture"
Williams v. Mass. Mut. Life Ins. Co., 226 F.R.D. 144 (D. Mass. 2005)
In this wrongful termination case, plaintiff sought the court's help in obtaining from defendant employer a particular email he claimed to have seen and possessed at one point, but no longer possessed. He sought an order appointing a neutral computer forensics expert to conduct the search for the email, and, in the event the email was discovered, to conduct an additional, more detailed electronic investigation "'to locate and retrieve all electronic communications related to his employment and termination that have not as yet been produced by defendants.'" He also sought an order requiring defendants to "'preserve all documents and information, whether in electronic or paper form, to suspend all recycling of any backup tapes, any automated deletion of e-mail, the reformatting of hard drives, and/or that an appropriate medium for retention of this type of data be disclosed and utilized.'"
Defendants opposed the motion, asserting that it was based on "'flimsy and implausible assertions'" and that the October 24, 2002 email plaintiff sought was most likely an October 24, 2002 memorandum which had already been produced. Defendants further asserted that they had undertaken their own forensic analysis which failed to identify any email message of the sort plaintiff alleged he once had in his possession.
The court observed that plaintiff sought "significant relief -- the search of Defendants' information systems -- based not only on uncorroborated evidence but, curiously, on a document which Plaintiff himself claims to have had in his possession but which he can no longer locate." The court declined to appoint a neutral expert in computer forensics "in order to help Plaintiff confirm what is at best highly speculative conjecture that the October 24, 2002 e-mail message which he claims exists is something other than the October 24, 2002 memorandum which Defendants have produced." It reasoned that plaintiff had presented no credible evidence that defendants were unwilling to produce computer-generated documents, whether now or in the future, or that defendants had withheld relevant information.
The court was "similarly disinclined" to allow plaintiff to conduct a forensic search at his own expense. "Before permitting such an intrusion into an opposing party's information system -- particularly where, as here, that party has undertaken its own search and forensic analysis and has sworn to its accuracy -- the inquiring party must present at least some reliable information that the opposing party's representations are misleading or substantively inaccurate."
The court did, however, order defendants "to preserve all documents, hard drives and e-mail boxes which were searched by their forensic expert in response to Plaintiff's motion." It stated that such an order, in the court's estimation, was not unduly burdensome and was necessary to preserve plaintiff's appellate rights.
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