2006 E-Discovery Amendments Do Not Require Forensic Computer Search as a Matter of Course; Court Orders Parties to Meet and Confer on Certain Issues

Scotts Co. LLC v. Liberty Mut. Ins. Co., 2007 WL 1723509 (S.D. Ohio June 12, 2007)

In this case, plaintiff asked the court to enter a discovery order to "ensure the production of all electronically stored information in an acceptable format as required by law and the most recent amendments to the Federal Rules of Civil Procedure."  Plaintiff also sought to compel the re-production of ESI previously produced by defendant in hard copy form, and to compel the production of deleted documents.

Forensic Search 
Plaintiff first contended that, pursuant to the 2006 amendments to Fed. R. Civ. P. 34, it was entitled to an order that would require defendant to allow a forensic expert to search defendant’s computer systems, network servers and databases and would require defendant to provide back up tapes of certain information systems.  Plaintiff offered to pay the cost of the forensic expert and to allow defendant ten days to review the data for privilege before any production was made.  Defendant objected, arguing that the 2006 amendments required no such discovery order as a matter of course.  The court agreed with defendant, and observed:

The 2006 amendments to Rule 34 of the Federal Rules of Civil Procedure simply clarify "that discovery of electronically stored information stands on equal footing with discovery of paper documents."  Fed. R. Civ. P. 34 Advisory Committee’s Note on 2006 Amendments.  Consequently, without a qualifying reason, plaintiff is no more entitled to access to defendant’s electronic information storage systems than to defendant’s warehouses storing paper documents.

The court further concluded that plaintiff had not demonstrated a need for such a search:

Plaintiff requested the intrusive examination of its opponent’s computer systems on the mere suspicion, based solely on the nature of the claims asserted, that defendant may be withholding discoverable information.  Plaintiff’s speculation is, in the view of this Court, entirely insufficient.  Plaintiff’s few allegations of misconduct, which are adequately explained by defendant, simply do not justify Court-mandated access to defendant’s information storage systems.

Accordingly, the court denied plaintiff’s request for a forensic search.

Re-Production of ESI Previously Produced in Hard Copy Format
Second, plaintiff asked that defendant re-produce electronic data, including metadata, in the form in which it was maintained by defendant instead of in the hard copy form in which it was produced by defendant.  Plaintiff argued that Rule 34 allows a party to specify the form in which electronically stored information must be produced, and that, “’[a]s a matter of law, a party’s discovery obligations are not satisfied by the production of computerized information in hard copy format.’"

Defendant did not disagree that a party may specify the format for production, but argued that its production was proper since plaintiff’s requests for production of documents made no such specification.  Defendant asserted that it produced over 6,400 documents that were retrieved from electronic sources, and, citing Fed. R. Civ. P. 34(b)(iii), argued that it should not now be required to re-produce all those documents in another form.

The court found plaintiff’s argument on the issue “simply an incorrect statement of the law,” and found that none of the cases cited by plaintiff supported the proposition that hard copy production of ESI was an unacceptable format “as a matter of law.”  However, the court also noted that, under the amended Rule 34, a responding party is obligated to specify in advance of production the form in which the requested information will be produced.  It elaborated:

Indeed, the Advisory Committee explains, "If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature."  Plaintiff now argues that some of the documents produced in hard copy form are not reasonably usable for the purpose for which they were requested since they cannot be searched for metadata.

Because it was unclear to the court whether the parties had fully exhausted extra-judicial efforts to resolve this dispute, the court ordered the parties to meet and confer on the issue within ten days of the order.

Production of Deleted Documents
Third, plaintiff sought the production of certain deleted documents.  Defendant had objected on the basis that the requested documents were either non-existent or not reasonably accessible to defendant.  Defendant also contended that, in any event, some of the deleted information requested was not relevant.

The court stated it was unclear whether the deleted information requested by plaintiff was both relevant and retrievable.  The court stated that plaintiff must first establish that the deleted information sought fell within the ambit of discoverable information.  Then, if the information were shown to be relevant, the defendant must determine whether the deleted information would be retrievable without undue burden.  The court advised that, if defendant took the position that the information would not be retrievable without undue burden, plaintiff would then have the opportunity, and the burden, to establish by expert evidence that a forensic search of defendant’s systems was reasonably likely to result in the recovery of relevant, deleted information.  The court ordered the parties to meet and confer on this issue as well, and denied plaintiff’s motion without prejudice.