Sixth Circuit Finds Demonstrable Abuse of Discretion in Trial Court’s Order Requiring Forensic Imaging of State-Owned and Privately-Owned Computers by Plaintiffs’ Computer Expert with Assistance from U.S. Marshal

John B. v. Goetz, 2008 WL 2520487 (6th Cir. June 26, 2008)

In this case, state defendants sought mandamus relief from two discovery orders issued by the district court during the course of the class-action litigation.  The district court had issued the orders after a discovery dispute arose regarding defendants’ duty to preserve and produce ESI relevant to the litigation.  In the first order, the district court directed plaintiffs’ computer expert and a court-appointed monitor to inspect the state’s computer system and the computers of 50 key custodians to ascertain whether any relevant information has been impaired, compromised, or removed.  The second order denied reconsideration of the first order and directed that the first order be executed forthwith.  Both orders allowed plaintiffs’ computer expert to make forensic copies of the hard drives of identified computers, including not only those at the work stations of the state’s key custodians, but also any privately owned computers on which the custodians may have performed or received work.  The orders also directed the U.S. Marshal, or his designated deputies, to accompany plaintiffs’ computer expert to ensure full execution of the orders.

The Sixth Circuit entered an emergency stay of implementation of the orders on December 7, 2007, which was previously summarized here.

In this decision, the Sixth Circuit concluded that certain aspects of the district court’s November 15 and 19 orders constituted a “demonstrable abuse of discretion.”  Accordingly, it granted, in part, defendants’ petition for mandamus and set aside those provisions of the district court’s orders that required the forensic imaging of state-owned and privately owned computers, including the provisions that required the U.S. Marshal or his designee to assist plaintiffs’ computer expert in the execution of the orders.

In reaching its decision, the court applied a five-factor balancing test, examining whether:  (1) the party seeking the writ has no other adequate means, such as direct appeal, to attain the relief desired; (2) the petitioner will be damaged or prejudiced in a way not correctable on appeal; (3) the district court’s order is clearly erroneous as a matter of law; (4) the district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal rules; and (5) the district court’s order raises new and important problems, or issues of law of first impression.  The court explained that the factors need not all be met, and that some factors will often be balanced in opposition to each other.  Ultimately, the court found that, because the first, second, third, and fifth factors all weighed in favor of granting the writ, the case presented the type of extraordinary circumstance that warranted mandamus relief.

Regarding the third factor, the court determined that the provisions in the orders that require the forensic imaging of all computers containing responsive ESI constituted an abuse of discretion.  The court’s analysis of this issue is quoted at length below:

As a general matter, it is beyond question that a party to civil litigation has a duty to preserve relevant information, including ESI, when that party "has notice that the evidence is relevant to litigation or … should have known that the evidence may be relevant to future litigation."  See Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001); see also Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216-18 (S.D.N.Y. 2003); The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, Second Edition 11, 28 (The Sedona Conference Working Group Series, 2007), available at http:// TSC_PRINCP_2nd_ed_607.pdf.  It is the responsibility of the parties to ensure that relevant ESI is preserved, and when that duty is breached, a district court may exercise its authority to impose appropriate discovery sanctions.  See Fed.R.Civ.P. 37(b), (e); The Sedona Principles, supra, at 70 (noting that sanctions should be considered only if the court finds a clear duty to preserve, a culpable failure to preserve and produce relevant ESI, and a reasonable probability of material prejudice to the adverse party).

There is less clarity, however, surrounding the question of a district court’s authority to compel the forensic imaging and production of computer hard drives as a means by which to preserve relevant electronic evidence.  Because litigants are generally responsible for preserving relevant information on their own, such procedures, if at all appropriate, should be employed in a very limited set of circumstances.  Cf. The Sedona Principles, supra, at 33 (noting that, because all litigants are obligated to preserve relevant information in their possession, preservation orders generally must be premised on a demonstration that a real danger of evidence destruction exists, a lack of any other available remedy, and a showing that the preservation order is an appropriate exercise of the court’s discretion).  In this case, the district court ordered the forensic imaging predominantly for preservation purposes, explaining that "[t]hese Orders were to protect against the Defendants’ destruction of responsive information in light of the Defendants’ persistent refusals to produce ESI in violation of the Court’s orders."  In so doing, the district court committed a clear error in judgment.

To be sure, forensic imaging is not uncommon in the course of civil discovery.  See Balboa Threadworks, Inc. v. Stucky, No. 05-1157-JTM-DWB, 2006 WL 763668, at *3 (D. Kan. March 24, 2006).  A party may choose on its own to preserve information through forensic imaging, and district courts have, for various reasons, compelled the forensic imaging and production of opposing parties’ computers.  See, e.g., Ameriwood Indus., Inc. v. Liberman, No. 4:06CV524-DJS, 2006 WL 3825291, at *3-*6 (E.D. Mo. Dec. 27, 2006), amended by 2007 WL 685623 (E.D. Mo. Feb. 23, 2007); Cenveo Corp. v. Slater, No. 06-CV-2632, 2007 WL 442387, at *1-*3 (E.D. Pa. Jan. 31, 2007); Frees, Inc. v. McMillian, No. 05-1979, 2007 WL 184889, at *2 (W.D. La. Jan. 22, 2007).  Nevertheless, "[c]ourts have been cautious in requiring the mirror imaging of computers where the request is extremely broad in nature and the connection between the computers and the claims in the lawsuit are unduly vague or unsubstantiated in nature."  Balboa Threadworks, 2006 WL 763668, at *3; see also Balfour Beatty Rail, Inc. v. Vaccarello, No. 3:06-CV-551-J-20MCR, 2007 WL 169628, at *2-*3 (M.D. Fla. Jan. 18, 2007); Diepenhorst v. City of Battle Creek, No. 1:05-CV-734, 2006 WL 1851243, at *2-*4 (W.D. Mich. June 30, 2006).  As the Tenth Circuit has noted, albeit in an unpublished opinion, mere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures.  See McCurdy Group, LLC v. Am. Biomedical Group, Inc., 9 F. App’x 822, 831 (10th Cir. 2001).   And The Sedona Principles urge general caution with respect to forensic imaging in civil discovery:

Civil litigation should not be approached as if information systems were crime scenes that justify forensic investigation at every opportunity to identify and preserve every detail….  [M]aking forensic image backups of computers is only the first step of an expensive, complex, and difficult process of data analysis that can divert litigation into side issues and satellite disputes involving the interpretation of potentially ambiguous forensic evidence.

The Sedona Principles, supra, at 34, 47.  Thus, even if acceptable as a means to preserve electronic evidence, compelled forensic imaging is not appropriate in all cases, and courts must consider the significant interests implicated by forensic imaging before ordering such procedures.  Cf. Fed.R.Civ.P. 34(a) Advisory Committee Note (2006) ("Courts should guard against undue intrusiveness resulting from inspecting or testing [electronic information] systems.").

The district court’s compelled forensic imaging orders here fail to account properly for the significant privacy and confidentiality concerns present in this case.  The district court has ordered plaintiffs’ computer expert, accompanied by deputy U.S. Marshals, to enter state agencies, and the offices and homes of state officials, to make forensic images of hard drives and other devices, whether state-owned or privately owned, that contain information relevant to the instant litigation.  As discussed, the media at issue will almost certainly contain confidential state or private personal information that is wholly unrelated to the litigation.  Although the risk of improperly exposing such information, standing alone, might not preclude the employment of forensic imaging in all cases, the forensic imaging must be premised on an interest significant enough to override that risk.  Such an interest is not demonstrably present in this case.

In its memorandum opinion of October 9, 2007, the district court explained that it issued the contested orders because it believed that defendants had failed to comply with various discovery orders and had not properly preserved relevant ESI throughout the course of this litigation.  The record is not sufficient for this court to question those conclusions.  Even so, the record lacks evidence that defendants have intentionally destroyed relevant ESI in the past, and nothing in the record indicates that defendants are unwilling, or will refuse, to preserve and produce all relevant ESI in the future.  Furthermore, forensic imaging is not the only available means by which the district court may respond to what it perceives to be discovery misconduct.  The district court maintains authority to impose sanctions for discovery violations under the federal rules and pursuant to its inherent powers.  Although we take no position regarding the propriety of sanctions in this case, such measures can be less intrusive than forensic imaging, and it is not apparent from the record that the district court has exercised its sanctioning authority.  In fact, the district court expressly reserved discussion of sanctions in its October 9, 2007 opinion.

Aside from these privacy and confidentiality considerations, this case raises other obvious issues that counsel against the forensic imaging procedures ordered by the district court.  As directives to state officials, these orders implicate federalism and comity considerations not present in typical civil litigation.  Many of the computers subject to the orders are in the custody of high ranking state officials, and these computers will contain information related to confidential state matters.  Further, the orders call for federal law enforcement officers to accompany plaintiffs’ computer expert into state agencies — and, in some cases, the homes and offices of state officials — to effect the imaging.  These procedures clearly do not take adequate account of federalism and comity considerations.  If the use of federal law enforcement officers in matters of civil discovery is proper under some circumstances, those circumstances are not present here.

Certainly, state officials are not immune from complying with federal discovery mandates.  However, where less intrusive means are available to address the perceived discovery violations of state parties, those means should be employed before resorting to inherently intrusive measures like forensic imaging, especially in cases where there is no evidence of purposeful or intentional destruction of relevant ESI.  In light of the significant confidentiality and federalism concerns present in this case, the district court’s forensic imaging orders constitute the type of "demonstrable abuse of discretion" that warrants mandamus relief.  See In re Wilkinson, 137 F.3d 911, 914 (6th Cir. 1998).  The third mandamus factor thus weighs in favor of granting the writ.

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