Court Orders Solicitation of Bids From Forensic Computer Technicians to Assess Whether the Search and Restoration of Additional Data From Defendant’s Company Computers is Justified Under FRCP 26(b)(2)(C)
Peskoff v. Faber, 244 F.R.D. 54 (D.D.C. 2007)
In this opinion, United States Magistrate Judge John M. Facciola continued attempts to resolve ongoing discovery issues in Plaintiff Jonathan Peskoff’s suit to recover damages for financial injury resulting from Defendant Michael Faber’s operation of a venture capital fund, called NextPoint Partners, LP. Peskoff and Faber were managing members of NextPoint GP, LLC ("NextPoint "), the general partner of the venture capital fund. Peskoff left NextPoint in January 2004 and filed an action against Faber shortly after.
In discovery, Peskoff sought documents, including email from his time at NextPoint Management. Faber’s initial productions of email and other documents did not include any emails that Peskoff received or authored between mid-2001 and mid-2003. In a previous ruling centering on the missing data, the court noted that the unresolved issue was whether such emails still existed and could be located, and whether the efforts made to date to locate them had been adequate. The court had ordered the Defendant to conduct additional searches for any email involving Peskoff, and to submit a sworn statement and provide testimony at an evidentiary hearing on the nature and adequacy of such searches. (For additional background information, click on the links to see summaries of two previous orders in this case related to this issue, entered July 2006 and February 2007).
In this opinion, the court noted that Faber had failed to appear at the subsequent evidentiary hearing, and that this failure to comply with the court’s previous order would be construed against him. The court then relied on the testimony made by others at the hearing, and on other available information, and concluded that the production to date raised many questions regarding its completion and the sufficiency of the searches performed. The court also concluded that any additional searches would require additional resources beyond the tools available to NextPoint.