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.

The court next observed that the need for a forensic examination was directly attributable to what was and was not done by Mr. Faber to preserve ESI.  The court found that, taken together, those acts and omissions "shattered" any argument that the burden or expense of that forensic examination, if incurred by Mr. Faber, would be "undue."

First, the court found that Mr. Faber’s efforts to search for responsive ESI was, at best, inadequate.  The court previously described numerous searches that might yield responsive information, yet Mr. Faber apparently did not conduct any of these possible searches.  Second, Mr. Faber failed to deactivate network maintenance tools that automatically delete ESI.  Mr. Faber did not have Mr. Peskoff’s e-mails archived until April 2004, and at no point did he have the relevant back-up tapes preserved.  Finally, Mr. Faber, who did not appear at the court’s evidentiary hearing on the matter, provided no explanation for these failings or for the peculiar temporal gaps in his production, and he refused to provide details of the search he purportedly conducted of his own email.  The court concluded:  “That he has at this late stage not fully explained his actions provides an additional reason why the costs should not be shifted from him.”

In light of these facts, the court found no reason to deviate from the traditional rule that a responding party bears the costs of production.  “This is a problem of Mr. Faber’s own making and, consequently, the expense and burden of the forensic examination can hardly be described as ‘undue.’"

Accordingly, the court ordered plaintiff to pay $33,000 into the registry of the court, so that the court could dispense payments to the vendor as the invoices were received.

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