Court Grants Plaintiff’s Motion to Compel Re-Production of Particular ESI in Light of Discrepancies between Emails and Attachments, Orders Parties to Confer Regarding Request for Access to Hard Drives

White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2009 WL 722056 (D. Kan. Mar. 18, 2009)

In this wrongful termination case, plaintiff discovered discrepancies between certain relevant emails’ sent dates and the creation dates of their attachments. These discrepancies, plaintiff contended, were relevant to the issue of when the decision to terminate her employment was made. Without additional information, however, plaintiff’s forensic expert could not come to a conclusion regarding the meaning of the discrepancies. Accordingly, plaintiff sought the re-production of the emails, in native format, and their attachments from the Outlook accounts of both the sender and the recipient of each email. Plaintiff also sought the production of the relevant PST and OST files and access to the hard drives used to create any of the emails’ attachments. Plaintiff’s motion was granted in part and denied in part.

Upon examination of three emails sent between plaintiff’s supervisors and those emails’ associated attachments, plaintiff’s expert discovered “discrepancies between the creation and sent dates of the emails and attachments” but could not make any definitive conclusions without additional investigation. For example, despite defendants’ claim that the decision to terminate plaintiff was made on July 2, 2004, an attachment to one of the relevant emails showed a creation date of June 9th. Plaintiff’s expert indicated that in order to determine when an email was created and transmitted, he needed to review the email from both the sender’s “sent items” and the recipient’s “inbox” and that he also needed access to the computer that created the emails and their attachments. Accordingly, plaintiff filed her motion to compel.

In response, defendants explained that the discrepancies were “due to the documents being templates” which were modified as needed. Defendants further indicated their belief that not all of the emails sought were available for re-production from the sources specified. Specifically, defendants indicated that the emails of the Vice President of Human Resources were not available prior to 2005, and that the emails previously produced were the only versions available and could not be located for re-production in the locations specified by plaintiff.

Lacking any explanation from defendants regarding why the emails were unavailable, the court granted plaintiff’s request and ordered defendants to re-produce, in their native format, the emails and attachments from both the emails’ recipients and senders. If defendants were unable to do so, they were ordered to provide an explanation why not.

In so ordering, the court found that “the briefing on the issue does not provide sufficient information for the Court to make a specific finding regarding where the electronically stored information (“ESI”) in question may be located.” It further noted that The District of Kansas’ Guidelines for Discovery of ESI “require counsel to become knowledgeable about their clients’ information management systems and their operation” and that counsel “should make a reasonable attempt to view their clients’ ESI to ascertain the contents.” Thus, the court concluded, “counsel should have become knowledgeable about Defendants’ email system” and should, in future, provide the court a clear description of those systems to assist in the resolution of discovery disputes.

Addressing plaintiff’s request for the PST and OST Outlook files, the court was persuaded that the files would likely assist in plaintiff’s attempts to resolve the discrepancies. Regarding defendants’ claims that some of the files may not be available due to cleaning or upgrading certain drives, the court indicated its lack of clarity regarding whether the files could be located elsewhere, such as on a network server, or backup system. Nonetheless, defendants were ordered to produce the PST files, in their native format. Additionally, the court ordered the parties to meet and confer, using their computer experts, to agree on a process for the production of OST files, limited to the information reasonably necessary for plaintiff’s expert to ascertain the creation dates and reasons for possible discrepancies.

Turning to the issue of access to hard drives, the court noted defendants’ objections that the request was overly broad and that some drives were inaccessible due to cleaning or wiping drives when an employee left the company. Defendants further asserted that plaintiff had offered no evidence showing that mirror images of entire hard drives were necessary.

The court’s analysis began with the language of Fed. R. Civ. P. 34, “which allows a party to request that another party ‘produce and permit the requesting party…to inspect, copy, test, or sample… [ESI].” The court also relied upon the language of the advisory committee notes, suggesting that inspection, while not routine, may be justified in some circumstances:

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.

Finally, the court recognized that several prior decisions in the District of Kansas permitted the inspection or mirror imaging of computer hard drives and that, “[while] cautious, many courts now consider requests for inspection or request for forensic or mirror imaging of computers to be neither routine nor extraordinary.”

Accordingly, in light of the discrepancies discovered, the court agreed that more information was needed to make a definitive conclusion. However, the court was unconvinced that a mirror image was necessary in light of plaintiff’s failure to provide sufficient information to establish that the creation or modification of the documents at issue could be located on the relevant hard drives. Thus, the court ordered the parties, with their experts, to meet and confer “regarding the location of the information pertaining to the creation or modification of the email attachment [at issue]” and to determine an agreed protocol to access that information. Also, the court denied plaintiff’s request for access to the system clocks of the drives at issue where the court determined such access “would be futile.”

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