Court Declines to Shift Cost of Forensic Examination Necessitated by Party’s Own Actions and Inaction
Peskoff v. Faber, 251 F.R.D. 59 (D.D.C. 2008)
In a previous decision, Magistrate Judge John M. Facciola addressed the sufficiency of the search done by defendant Michael Faber for emails and other ESI in response to plaintiff’s discovery requests, and determined that it was "appropriate to ascertain the cost of forensic testing of the computers and server at issue to see if it justifies a forensic search of them." Peskoff v. Faber, 244 F.R.D. 54, 63 (D.D.C. 2007). The parties submitted a joint bid proposal, which the court distributed to numerous vendors. Three bids were received, the lowest of which was $33,000. When the parties failed to reach agreement on how to share that cost, the matter was submitted again to Judge Facciola for resolution.
The court noted it had already determined that the Rule 26(b)(2)(C) factors weighed strongly in favor of the discovery, since the information sought was highly relevant, not duplicative, and could not be obtained from other sources. The court then addressed the cost of the forensic search, and observed that it was not a situation “where the anticipated cost of doing the forensic search will dwarf the final recovery,” given that Mr. Peskoff was demanding $2.5 million. The court concluded that, when balancing the cost of the forensic examination against the factors favoring the discovery, good cause existed to compel the forensic examination.