Court Denies Motion to Compel Discovery in order to Establish Backdating of Document

Fennell v. First Step Designs, Ltd., 83 F.3d 526 (1st Cir. 1996)

In wrongful termination suit, defendant moved for summary judgment after the close of discovery. Plaintiff sought to continue the motion under Fed. R. Civ. P. 56(f) and requested additional discovery. At issue was a critical document exonerating defendant, which plaintiff claimed had been fabricated or backdated.

In response to plaintiff’s Rule 56(f) motion, defendant provided a disk containing a copy of the document, and presented expert testimony that there was no way to determine its creation date from defendant’s computer system. Plaintiff’s expert proposed that the original date of creation or earlier modification could be determined by a review of the file as it resided on defendant’s hard drive, rather than the disk provided. The court held a hearing on plaintiff’s request for discovery of defendant’s hard drive, and directed the parties to submit their proposed protocols for the discovery. After reviewing the protocols, and without holding another conference, the court decided that its earlier decision to consider further discovery had been ill-advised, denied any further discovery and granted defendant’s motion for summary judgment.

On appeal, the court held that the district court acted within its discretion in disallowing further Rule 56(f) discovery. It agreed that plaintiff had not demonstrated a particularized likelihood of discovering appropriate information, as she did not sufficiently “‘set forth a plausible basis for believing that specified facts, susceptible of collection within a reasonable time frame, probably exist.'” 83 F.3d at 533. Further, it found that the lack of detail in plaintiff’s protocol cast even more doubt on the soundness of the technical basis for the discovery venture. The court concluded: “While there may be cases where discovery of word processing files on a computer hard drive might well be warranted, [plaintiff] has not met her burden of demonstrating that the district court abused its discretion in denying that opportunity here.” Id. at 534.

For another employment case involving allegations of back-dating, see Momah v. Albert Einstein Med. Center, 164 F.R.D. 412 (E.D. Pa. 1996). There, the court granted plaintiff’s request for a “copy of the computer list files screen for documents relating to Dr. Momah in Dr. Levy’s computer system.” The computer list screen listed “each document created by name or number, as well as the size of the document, the date on which it was created and the date on which it was last edited.” 164 F.R.D. at 418. The plaintiff claimed that a defendant had admitted to incorrectly dating a disciplinary memorandum relating to the plaintiff, and argued that he needed the information so that he could verify when certain documents relating to his discharge were created. The court concluded that it was a close question, but allowed the plaintiff access to the computer list screen, since evidence of back-dating could serve to cast doubt on the stated reasons for plaintiff’s termination. Id. The case is distinguishable from Fennell in that discovery had not closed, the request for additional discovery was not based on Fed. R. Civ. P. 56(f), and the request would not require an intrusive on-site inspection of the defendant’s computer. See also Stallings-Daniel v. The N. Trust Co., 2002 WL 385566 (N.D. Ill. Mar. 12, 2002) (denying plaintiff’s request for “electronic discovery” in employment litigation), discussed infra.

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