Electronic Discovery Law

The College moved to quash plaintiffs’ subpoena which sought records and reports produced pursuant to a computer forensics consultant’s media scan of Dr. Trammell's computer. The College argued that the subpoenaed records were protected work product; it explained that it hired the firm, Digital-DNS, to do "a limited search of Dr. Jena Trammell's hard drive to determine whether certain emails provided by Dr. Teitloff to Anderson College were authentic." The opinions of Digital-DNS were not expected to be presented at trial. The College further explained that, after receiving the report from Digital-DNS, it retained a different forensic consultant which made a forensic image of the hard drive and performed a more in-depth investigation. Defendants provided the plaintiffs with a report of that investigation in February 2005. The College pointed out that, if the report did not meet plaintiffs’ need, they were free to conduct their own forensic analysis of the hard drive.

Dr. Trammell was suspended in August 2005 and was terminated on December 1, 2005. The College contended that they did not base Dr. Trammell's termination on anything found by Digital-DNS or Kroll OnTrack, but that if it had based the decision on emails, the decision would have been based on Kroll OnTrack's report, which had been in the defendants' possession since February 2005.

The court sided with the College, concluding that the plaintiffs had not carried their burden of showing a substantial need for Digital-DNS' records and further that they were unable without undue hardship to obtain the substantial equivalent of the materials by other means. The evidence presented showed that, other than the analysis performed by Digital-DNS, the hard drive of Dr. Trammell’s computer had not been connected to any computer system, and there had been no change in the data or information on the hard drive since its retrieval. Accordingly, the court quashed plaintiffs’ subpoena to Digital-DNS.

The court also quashed the subpoena issued by defendants which sought "any and all electronic storage media including hard drives, zip drives, thumb drives, CD’s, DVD’s, etc. from and pertaining to any computer including desk top computers and/or laptops used by Dr. Jena Trammell from January 1, 2002 to the present." The court stated that, since Dr. Trammell was a party to the case, defendants should have proceeded under the provisions of Rule 34 and not by subpoena under Rule 45.