Electronic Discovery Law

Benton v. Dlorah, Inc., 2007 WL 2225946 (D. Kan. Aug. 1, 2007)

In this employment discrimination case, defendants moved to compel plaintiff to provide complete responses to requests for production, to produce the hard drive of her personal computer for inspection and copying, and to stop destroying emails and other relevant evidence.  Defendants had requested all communications between plaintiff and defendant National American University or its employees, agents, or students.  Plaintiff produced some documents as part of her initial disclosures and in response to defendants’ discovery requests.  In subsequent discussions regarding the sufficiency of plaintiff’s production, plaintiff's counsel informed defense counsel that plaintiff had deleted email correspondence with her students and could not produce any additional emails beyond what she had already provided in her initial disclosures.  Prompted by concerns about recovering these emails, as well as the discovery responses, defendants requested that she produce the hard drive of her personal home computer to facilitate recovery of the deleted emails by a computer forensics specialist.  Plaintiff refused to produce her computer hard drive without an order of the court.  After further efforts to resolve the discovery dispute, defendants filed a motion to compel.

In support of the motion, defendants noted that plaintiff had produced only a handful of emails for the months of November 2006 through January 2007, only one email for the month of February 2007, and no email beyond that date.  Defendants voiced their belief that, because plaintiff admitted to deleting all email communications between NAU students and herself aside from those that she produced in the litigation, and because she had not produced any email communications that took place after February 2007, that plaintiff had been deleting emails relating to her employment at NAU since that date.

In response, plaintiff argued that she had “produced all e-mails and other documents related to her claims in this case."  In regard to specific disputed requests, plaintiff stated that she had either provided the requested information or that there were no responsive documents.  Moreover, plaintiff pointed out that she had already provided documents requested by defendants in her Rule 26 initial disclosures, that the email she received from defendants and their employees were always on defendants' email server, and the there was little, if any, communication with defendants on her personal email server.

Regarding defendants’ suggestion that plaintiff must have destroyed additional responsive documents by her deletions; because she has produced only one e-mail since February 2007 and otherwise admitted to deleting emails, the court stated it found “nothing to lead to such an inference, beyond speculation.”  The court stated that it would “not assume that Plaintiff is lying or that she has been discredited in her responses to the requests for production.”

The court denied defendants’ motion without prejudice, finding that defendants had not sustained their burden to show that plaintiff had in fact failed to comply with their requests for production, that her personal hard drive contained any additional information subject to discovery, or that plaintiff had spoliated evidence.