Citing Pending E-Discovery Amendments, Court Explains Why Forensic Inspection of Defendant’s Computers Is Not Warranted

Powers v. Thomas M. Cooley Law School, 2006 WL 2711512 (W.D. Mich. Sept. 21, 2006)

In her complaint, plaintiff alleged that the law school had failed to grant her reasonable accommodations necessitated by problems with her vision. Part of the factual basis of plaintiff’s case was the allegation that the computer systems maintained by the law school to assist persons with visual disabilities repeatedly malfunctioned, especially during plaintiff’s final examinations.

Previously, the court had ordered defendant to produce all work orders to the IT Department involving three specified rooms in defendant’s Lansing campus for a particular time period. Plaintiff moved to compel the law school to comply with the prior discovery order, but did not seek permission to allow plaintiff’s expert to conduct an inspection and investigation of defendant’s database to extract allegedly relevant information.

In response to plaintiff’s motion, defendant presented the court with the affidavits of two IT directors which directly rebutted plaintiff’s allegations concerning defendant’s alleged noncompliance with the court’s discovery order and demonstrated that, to a significant extent, plaintiff and her counsel misunderstood the law school’s system for assisting students and faculty with computer problems and for generating work orders. The defense affidavits disclosed that the law school had implemented a new computerized work order system at the beginning of the time period covered by the discovery order. The old system was called “Track It,” while the new system was denominated “HelpStar.” After the new HelpStar system was implemented, the old Track It system continued in operation for a few months on a parallel basis. One affiant reported that the ability to electronically retrieve documents from the Track It system was lost when that system was discontinued. However, the law school had previously produced in paper form several work orders that existed on the Track It system that fell into the relevant time period and were responsive to the court’s order. Consequently, although it was no longer possible to search electronically for responsive documents dated within the two-or three-month “overlap” period, defendant was able to produce several responsive documents from this period that existed in paper form.

The court stated that, during the hearing, therefore, it became apparent from an examination of the affidavits and other factual material before the court that (1) the law school had complied with the court’s order to perform a new computer search for relevant work orders in the HelpStar system; (2) the search of the HelpStar system was conducted in a thorough and good-faith manner and all responsive documents were produced; (3) a computer search of the obsolete Track It system covering the two-or three-month “overlap” period was not reasonably practicable; (4) defendant had, however, produced responsive documents in paper form from the Track It system; and (5) the number of work orders produced in paper form from the Track It system was consistent with the number of responsive work orders for other months.

The court stated that plaintiff’s counsel then “shifted gears,” and orally sought permission to have plaintiff’s expert conduct a forensic search of the law school’s computer in an effort to extract relevant information from the Track It system. As noted above, however, plaintiff’s motion did not ask for this relief. Rather than rejecting plaintiff’s oral request out of hand, the court asked plaintiff’s counsel a number of questions directed to the factors made relevant by Rule 26(b)(2). After hearing from both parties, the court determined that the balance of factors under Rule 26(b)(2) did not favor the intrusive relief that plaintiff’s counsel injected into the discovery hearing by oral motion. The court found that, given the number of paper work orders produced by defendant for the short “overlap” period, it was not likely that significant other work orders would be found and that discovery of the few additional work orders that might theoretically lurk in the Track It system was not worth the delay, expense, and intrusion into the law school’s computer system. On this basis, the court denied plaintiff’s unpled, oral request for a forensic inspection of the law school’s computers.

In this decision, the court rejected plaintiff’s motion for reconsideration of its order. The court stated that, since plaintiff had not offered any legal authority for her request to conduct a forensic inspection of defendant’s computers, it fell upon the court “once more to analyze the issue, to make clear why plaintiff has not shown herself entitled to the relief requested.” It explained as follows:

The federal courts have assumed that the provisions of Rule 34(a) concerning inspection, copying, and testing of tangible objects are sufficient to authorize a court to order inspection of the adversary’s computer. See, e.g., Simon Property Group, LP v. MySimon, Inc., 194 F.R.D. 639, 640-41 (S.D.Ind. 2000).FN1 The question presented in the present case is whether the court should exercise its authority to do so in the circumstances presented.

FN1. The advisory committee notes to the pending amendments to Rule 34(a), however, express doubt on this subject. “The court rule is not clear that such testing or sampling is authorized; the amendment expressly permits it.” Proposed Amendment to Fed.R.Civ.P. 34, advisory committee’s note (Aug.2004). This court will nevertheless proceed on the assumption that, in an appropriate case, the court already has such authority under Rule 34. The amendments to Rule 34, slated to take effect on December 1, 2006, clarify the court’s power in this regard.

In most cases, the computer itself is not evidence. It is merely the instrument for creating evidence (like a typewriter) or the means of storing it (like a file cabinet). Increasingly, however, litigants have sought access to the opponent’s computer or other electronic devices to search for evidence, especially for deleted e-mails. The federal courts have generally resisted such incursions. In re Ford Motor Co., 345 F.3d 1315 (11th Cir.2003), is instructive. In that case, the Eleventh Circuit granted mandamus to prevent implementation of a district court order allowing plaintiffs to inspect certain database on Ford’s computers. Plaintiffs asserted that Ford had not been forthright in providing documents in response to discovery requests, and the district court granted them the right to perform their own examination of Ford’s computer. The Eleventh Circuit found that this was an abuse of discretion. The court remarked that Rule 34(a) requires the responding party to search his records to produce the required, relevant data. “Rule 34(a) does not give the requesting party the right to conduct the actual search.” 345 F.3d at 1317. The court remarked that at times, “perhaps due to improper conduct on the part of the responding party,” the requesting party itself may need to do its own examination, but noted that the district court had made no findings that Ford had failed to comply properly with discovery requests. Id. Consequently, while not categorically forbidding searches of the opponent’s computer for withheld evidence, the appellate court found that the record did not justify such unusual relief. “While some kind of direct access might be permissible in certain cases, this case has not been shown to be one of those cases.” Id.; accord, Bethea v. Comcast, 218 F.R.D. 328 (D.D.C. 2003).

The advisory committee notes to the proposed amendments to Rule 34, scheduled to take effect later this year, take a similar approach, suggesting that direct inspection of an opponent’s computer should be the exception and not the rule:

Inspection or testing of certain types of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy. The addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.

Proposed amendments to Fed.R.Civ.P. 34 advisory committee’s note (emphasis added).

This court concludes that the policy espoused by the Eleventh Circuit in the Ford Motor Co. case is consistent with the Rules of Civil Procedure, both in their present form and under the proposed amendments. The discovery process is designed to be extrajudicial, and relies upon the responding party to search his records to produce the requested data. In the absence of a strong showing that the responding party has somehow defaulted in this obligation, the court should not resort to extreme, expensive, or extraordinary means to guarantee compliance. Forensic inspection of computer hard drives is an expensive process, and adds to the burden of litigation for both parties, as an examination of a hard drive by an expert automatically triggers the retention of an expert by the responding party for the same purpose. Furthermore, examination of a hard drive inevitably results in the production of massive amounts of irrelevant, and perhaps privileged, information. Courts faced with this inevitable prospect often erect complicated protocols to screen out material that should not be part of discovery. See, e.g., Playboy Enter., Inc. v. Welles, 60 F.Supp.2d 1050, 1054 (S .D. Cal.1999) (appointing court’s expert to conduct examination). Again, this adds to the expense and complexity of the case. This court is therefore loathe to sanction intrusive examination of an opponent’s computer as a matter of course, or on the mere suspicion that the opponent may be withholding discoverable information. Such conduct is always a possibility in any case, but the courts have not allowed the requesting party to intrude upon the premises of the responding party just to address the bare possibility of discovery misconduct.

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