Recognizing Danger of Loss, Court Orders Expedited Discovery Including Copying of Defendants’ Hard Drives

Allcare Dental Mgmt., LLC v. Zrinyi, DDS, 2008 WL 4649131 (D. Idaho Oct. 20, 2008)

In this defamation case, plaintiffs sought an order allowing expedited discovery.  Specifically, plaintiffs sought permission to serve a subpoena duces tecum upon Cable One, Inc., an Internet service provider and non-party to the action, for information related to the claims in the case and the potential identification of Doe Defendants.  Plaintiffs also sought an order allowing them to take images of the hard drives of any computer owned or used by the named defendants for the preservation of electronically stored information related to the claims in the case and the potential identification of Doe Defendants.

Order on Motion for Expedited Third Party Discovery

Recognizing that in cases where the defendants are not identified, postponing production of defendants’ names and contact information until the normal course of discovery may not be an option, the court granted plaintiffs’ motion for permission to serve subpoenas upon Cable One.  The court also noted that expedited discovery was appropriate in this case because Internet service providers typically retain user activity logs for only a limited period of time ranging from a few days to a few months.

However, the court limited the scope of the subpoena to information regarding the individuals who posted the alleged defamatory statements, not to anonymous persons who merely visited the website.  The court required plaintiffs to serve Cable One with the subpoena within five days of its order.  Additionally, the court required Cable One to provide notice of the subpoena to its affected subscribers, and gave those subscribers 14 days within which to file a motion to quash. If no such motions were received, Cable One was ordered to produce the subpoenaed information to plaintiffs.

Order on Motion for Expedited Forensic Images of Defendants’ Hard Drives

The court also granted plaintiffs’ motion allowing expedited forensic imaging of the named defendants’ hard drives.  In support of this motion, plaintiffs argued that copying the drives was necessary to prevent loss of the information before the regular discovery process commenced.  Plaintiffs suggested that the defendants had evaded service in other matters and that they believed defendants had “little respect for the legal process or the requirement to preserve electronic data.”  Additionally, plaintiffs indicated their expectation that they would bear the costs associated with the request.

The court granted plaintiff’s motion, first ordering defendants to preserve any and all electronically stored information relevant to the plaintiffs’ claims.  The court further ordered that any of defendants’ computers or portable or detachable hard drives at work and/or at home must be made available to plaintiffs’ forensic expert for imaging.  The expert was ordered to image the drives without revealing the information to plaintiffs, and to file the information under seal with the court until such time as a stipulation between the parties was reached or until further order of the court.

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