Deipenhorst v. City of Battle Creek, 2006 WL 1851243 (W.D. Mich. June 30, 2006)
In this sexual harassment action, a former police department employee asserted that her supervisor (Sgt. Penning) subjected her to unwelcome sexual advances and requests for sexual favors. This memorandum opinion grants Sgt. Penning’s motion to compel the production of original journals, notes, calendars, and other documents, so that defendant’s forensic document expert might subject these items to nondestructive testing. The court rejected as unreasonable the conditions proposed by plaintiff that her own expert, as well as perhaps plaintiff’s counsel, be present at all times during the forensic examination by defendant’s document expert. The court noted that, in general, each party should be free to engage in its own trial preparation unhampered by the intrusive supervision of the opposing party. “In cases such as this, where purely nondestructive testing is proposed, the court generally allows the examiner to perform his or her work without being scrutinized by the opposing expert.” Further, the court observed that defendant’s expert would be required to file a Rule 26(a)(2) report disclosing all his findings and would be subject to deposition and cross-examination. “This provides sufficient safeguard for any legitimate concern by plaintiff regarding the expert’s methodology.”
The court denied the second part of Sgt. Penning’s motion, however, relating to electronically stored information. Sgt. Penning had requested that that plaintiff produce the hard drive of her personal computer so that defendant’s computer expert could make a "mirror image" of the hard drive contents. The court noted a lack of supporting evidence: “Although defendant urgently presses its need to subject plaintiff’s computer to this examination, defendant never explains to the court exactly what the object of the examination is or why defendant believes that it is necessary.” The court presumed that defendant sought to discover deleted e-mails and other electronically maintained evidence that plaintiff had not voluntarily produced during discovery.
The court observed:
In most cases, the computer itself is not evidence. It is merely the instrument for creating evidence (like a typewriter) or the means of storing it (like a file cabinet). Increasingly, however, litigants have sought access to the opponent’s computer or other electronic devices to search for evidence, especially for deleted e-mails. The federal courts have generally resisted such incursions.
The court found In re Ford Motor Co., 345 F.3d 1315 (11th Cir. 2003) instructive, and noted that the Advisory Committee Notes to the proposed amendments to Rule 34, scheduled to take effect later this year, take a similar approach, “suggesting that direct inspection of an opponent’s computer should be the exception and not the rule.” The court also observed that the few reported decisions allowing imaging of an opponent’s computer hard drive adopt an approach consistent with the policy expressed in the proposed amendments to Rule 34, and do not grant a routine right of direct access to the opposing party’s computer. “Rather, imaging is allowed only on a finding that the opponent’s document production has been inadequate and that a search of the opponent’s computer could recover deleted relevant materials.”
The court further opined:
The discovery process is designed to be extrajudicial, and relies upon the responding party to search his records to produce the requested data. In the absence of a strong showing that the responding party has somehow defaulted in this obligation, the court should not resort to extreme, expensive, or extraordinary means to guarantee compliance. Imaging of computer hard drives is an expensive process, and adds to the burden of litigation for both parties, as an examination of a hard drive by an expert automatically triggers the retention of an expert by the responding party for the same purpose. Furthermore, as noted above, imaging a hard drive results in the production of massive amounts of irrelevant, and perhaps privileged, information. Courts faced with this inevitable prospect often erect complicated protocols to screen out material that should not be part of discovery. See, e.g., Playboy Enter., 60 F.Supp.2d at 1054 (appointing court’s expert to conduct examination). Again, this adds to the expense and complexity of the case. This court is therefore loathe to sanction intrusive examination of an opponent’s computer as a matter of course, or on the mere suspicion that the opponent may be withholding discoverable information. Such conduct is always a possibility in any case, but the courts have not allowed the requesting party to intrude upon the premises of the responding party just to address the bare possibility of discovery misconduct.
The court stated that, in the absence of a showing that plaintiff had destroyed evidence or had otherwise failed in her discovery obligations, it was unwilling to expand the expense and burden of the case by ordering examination of the computers maintained by either party.