Sixth Circuit Stays District Court’s Order Allowing Plaintiffs’ Computer Expert, Escorted by United States Marshall, to Inspect and Forensically Image Tennessee State Agencies’ Computer Systems

John B. v. Goetz, No. 07-6373 (6th Cir. Nov. 26, 2007 and Dec. 7, 2007)

This case is a class action on behalf of roughly 550,000 children seeking to enforce their rights under federal law to various medical services, including early and periodic screenings for their physical well being, and dental and behavioral health needs.  Defendants in the case include Tennessee state officials who are in charge of the state programs for these services.

On October 9 and 10, 2007, following a series of conferences and hearings (including a one-week evidentiary hearing on e-discovery issues), the district court issued a 187-page Memorandum and accompanying Order granting plaintiffs’ motion to compel defendants to produce various electronically stored information (“ESI”).  The district court’s Memorandum and Order addressed search terms, key custodians, claims of undue burden and privilege, spoliation, sanctions and cost-shifting.  The district court also sharply criticized the defendants’ preservation and production methods, and ordered the production of all metadata and deleted information.  Further, the district court ordered that plaintiffs’ computer expert “shall be present for the [d]efendants’ ESI production and shall provide such other services to the defendants as are necessary to produce the metadata, as ordered by the Court.”  Additional background on the district court’s October 9 and 10 Memorandum and Order, with links to the 187-page Memorandum, is available in our previous blog entry. The district court subsequently appointed a monitor (former United States Magistrate Judge Ronald J. Hedges of the District of New Jersey) to oversee the court-ordered ESI production.

Defendants moved for reconsideration and/or clarification of various issues addressed in the district court’s October 9 and 10 Memorandum and Order, including the plaintiffs’ expert’s role in the defendants’ production efforts.  On November 15, 2007, the district court issued an Order (dated November 14) directing that plaintiffs’ expert and the court-appointed monitor shall “forthwith inspect the State’s computer systems and computers of the fifty (50) key custodians that contain information relevant to this action.”  The district court further directed that plaintiffs’ expert or his designee “shall make forensic copies of any computer inspected to ensure the preservation of all existing electronically stored information (“ESI”).”  Finally, the district court ordered that the United States Marshall or his designated deputies should accompany the plaintiffs’ expert to “ensure that this Order is fully executed.”  A copy of the district court’s November 15 Order is available here; a copy of the Order from Westlaw is now available here.

Defendants filed an Emergency Motion for Clarification and/or Reconsideration of the November 15 Order, calling the Order “extraordinarily intrusive and wholly unwarranted.”  Defendants argued that the district court’s Order “sweeps indiscriminately” through “any State computer or server that any of the designated custodians happened to have accesses.”  Defendants pointed out that the affected servers and computers contain myriad highly sensitive and privileged information that has nothing to do with the case, including, by way of example, draft legislation, privileged and confidential communications between the Governor and his advisors and counsel, executive appointments, budget priorities and even the Governor’s and First Lady’s security detail.  Defendants further argued that it was highly unusual to direct that forensic imaging be done by an opposing party’s expert, rather than by a neutral expert.  Finally, defendants cited disruption to the state’s operations and federal intrusion upon separate and coordinate state government prerogatives.

On November 19, 2007, the district court issued an Order granting in part and denying in part defendants’ Motion for Clarification and/or Reconsideration.  (View the November 19 Order here.)  The district court left intact those parts of its order directing that plaintiffs’ expert, accompanied by the monitor and the U.S. Marshall, be allowed to make forensic images of “those computers (including detachable media) that key custodians have used for receiving, sending or storing work-related ESI.”  The district court further ordered that the U.S. Marshall should arrange with state security personnel to retrieve privately-owed computers of key custodians for imaging.

Forensic imaging was scheduled to begin the morning of November 27, 2007.  Defendants filed an emergency petition for review by the Sixth Circuit Court of Appeals.  On November 26, 2007, the district court denied defendants’ motion to stay pending appeal.  (View the memorandum accompanying the November 26 order here.)  During the afternoon of November 26, 2007, however, the Sixth Circuit issued a temporary order staying the district court’s orders pending further order of the Court of Appeals.  The Sixth Circuit further directed the plaintiffs to supplement their response to address relief in mandamus no later than December 4, 2007.  The plaintiffs supplemented their response, as did defendants.  In addition, the states of Ohio, Kentucky, and Michigan filed briefs as amici curiae in support of the stay.  The panel addressed the matter further at a motions panel conference on December 6, 2007 and, on December 7, 2007 issued an order and opinion continuing the stay, assigning the matter to the Court’s regular oral argument calendar and directing the clerk to expedite briefing.

The Sixth Circuit acknowledged that discovery orders are not generally appealable, but noted the breadth of the discovery order, and the issues of federalism the order raised.  The Court further stated that "although the forensic copying of computer drives and servers may sometimes fall within the parameters of acceptable discovery, the emerging case law in this area cannot be read as establishing a routine right of access to such material."

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