Electronic Discovery Law
Court Denies Request for Forensic Examination of Opposing Party's Hard Drives
In this order, the court denied defendant’s motion to allow the forensic examination of plaintiff’s computer hard drives. Although the court noted that, in some cases, it may be appropriate to allow a forensic examination of computer hard drives, it concluded that defendant’s unsupported accusations of misconduct did not justify the remedy sought:
Even in such circumstances, though, a party would not be given an unfettered right to conduct its own examination of the opposing party's computers. Rather, a protocol would have to be established to protect legitimate privacy, privilege, and safety concerns, and to minimize disruption. The mere fact that this case involves electronic data does not change the basic concepts or rules of the discovery process. Had Mintel made the same basic accusations in an earlier age, its claims of incomplete document production, inconsistencies, or even perjury and destruction of evidence, would not automatically entitle it to an order permitting it to enter Advante's offices to rummage through filing cabinets and desks. The relief Mintel is asking for here is no different and no more warranted. FN1. Furthermore, notwithstanding the breadth of accusations Mintel has leveled, it has not presented specific, concrete evidence of concealment or destruction of evidence sufficient to conclude that a forensic examination of the vast scope it proposes is warranted at this juncture, even under an examination protocol that would protect the other parties' legitimate privacy and other interests.
FN1. At the hearing, Mintel explained that it does not seek to conduct the forensic examination personally, but that it contemplated a third party expert would be retained to conduct the search and that only relevant responsive materials would be turned over to Mintel. Neither Mintel's moving papers nor its proposed order included any discussion of, or provision for, such a procedure.
The court found appropriate the "compromise" suggested by plaintiff that its own attorneys personally review the computers to ensure that any additional responsive documents that may exist in readable form are produced. It further ruled that, if defendant subsequently could demonstrate that further discoverable information would be uncovered through a different inspection method, it could seek further relief, “but only after meeting and conferring both as to the necessity of such an inspection and as to the procedures under which it would occur, if at all.”
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