Court Denies Motion to Compel Sequestration and Forensic Examination of City’s Computers and Storage Devices, Directs Parties to Cooperate to Develop a “Meaningful Discovery Plan”

Mirbeau Geneva Lake, LLC v. City of Lake Geneva, 2009 3347101 (E.D. Wis. Oct. 15, 2009)

In this litigation over the attempted development of land in the City of Lake Geneva, plaintiff sought to compel production of all of defendants’ “computers and other electronic storage devices” for forensic examination.  In support of the motion, plaintiff argued that defendants’ offer to produce emails in “paper form” was insufficient and that defendants were not properly preserving data for production.  Noting plaintiff’s failure to make a sufficient showing in favor of such production and the parties’ failure to cooperate to reach agreement on the issues presented, the court denied plaintiff’s motion.

Plaintiff sought production of all of defendants’ computers and other electronic storage devices.  Beginning its analysis of the issues implicated by such a request, the court first established the controlling law.  Specifically, the court established that the rules “do not give a party the ‘right to conduct its own search of [another party’s] electronic devices” and that “[o]nly if the moving party can actually prove that the responding party has concealed information or lacks the expertise necessary to search and retrieve all relevant data, including metadata or residual data, is it proper for the moving party to initiate the searches of the other party’s ESI.”

In support of the motion, plaintiff argued that “defendant’s offer of providing…emails in ‘paper form’ is insufficient, as it does not provide ‘all relevant information stored in the electronic form…”  Plaintiff also “raised the concern” that Mirbeau was not properly preserving ESI for production and moved (in a supplement to the motion) to compel defendants to sequester their electronic storage devices.  Defendants argued plaintiff made an inadequate showing of the need for sequestering and that plaintiff’s request was overly burdensome.

The court denied plaintiff’s motion for several reasons including plaintiff’s failure to “identify what type of information it hopes will be discovered through the forensic mapping the entire City’s computer system, and [because] Mirabeau has not explained that the information it is requesting would be in the form in which the defendant’s ESI is normally maintained.”

Specifically addressing the accusation that defendants were not adequately preserving ESI, the court noted the lack of any indication that defendants had adequate procedures to respond to discovery but also noted the intrusive nature of plaintiff’s requested access.

The court went on to explain its “primary motivation for denying the motion,” i.e., “the apparent fact that neither party appears to have advanced any alternative proposals regarding acceptable discovery methods or media format in which to distribute the ESI relevant to the litigation other than the two extreme positions advocated by each side.”  Accordingly, the court directed the parties to begin “open and candid discussions …regarding the completion of discovery of the defendants’ ESI” and to develop a “meaningful discovery plan.”  In footnote, the court directed the parties to contemplate the following non-exclusive list of issues:

(1) what different methods could be used to find ESI relevant to this litigation; (2) whether neutral parties could be procured to run scans on the electronic devices of the defendants; (3) whether the searches for ESI could be staggered, such as not to disrupt the City’s ability to function; (4) whether the searches could be narrowed such that they are focused only on certain parties and certain dates; and (5) what methods need to be in place to ensure that the privacy rights of third parties are not adversely affected during the discovery process.

The court ended its discussion of the issue by noting its willingness to impose sanctions, including terminating sanctions, in the event of the destruction of relevant evidence.

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