Court Orders Forensic Examination of Plaintiff’s Computers Absent Denial that “Responsive Emails May have Existed at One Point”

Adhi v. Twp. of W. Pikeland, 2010 WL 1047894 (E.D. Pa. Mar. 16, 2010)

In this zoning dispute, defendant moved to enforce a prior order of the court and, essentially, compel more complete responses to discovery, including the production of electronically stored information (“ESI”), specifically emails.  Plaintiff indicated that even if responsive emails had existed, they were deleted in the ordinary course of business.  Accepting defendant’s assertions that “the mere deletion of an email does not make it lost forever”, however, the court ordered plaintiff to allow defendant’s “e-Discovery expert” to inspect plaintiff’s computers to determine if any responsive information was still contained on the hard drives or the servers.  In so ordering, the court reasoned that this would “allow Defendant to conduct discovery on information to which it is entitled without burdening Plaintiff with the expense of hiring a discovery expert.”

As summarized in the preceding paragraph, Defendant sought more complete and supplemental responses to discovery, including responses to interrogatories and requests for production. Defendant also sought sanctions for plaintiff’s alleged discovery shortcomings.  Regarding the requested interrogatory responses, the court granted the motion in part, and ordered some additional responses.  The court also ordered that plaintiff pay for defendant’s costs in bringing the motion.

Defendant alleged that plaintiff’s document production was incomplete.  Specifically, defendant opined that the three emails produced could not be the only responsive emails in plaintiff’s possession.  The court indicated, however, that neither the court nor defendant knew whether more email, in fact, existed.  Plaintiff indicated that if such email ever existed, it was deleted in the ordinary course of business.  Defendant asserted, however, that “the mere deletion of an email does not make it lost forever, and that additional responsive documents could be retrieved with an e-discovery specialist.”  The court was convinced:

Given that Plaintiff has not denied that additional responsive e-mails may have existed at one point, we think it appropriate to order Plaintiff, pursuant to Federal Rule of Civil Procedure 34(b), to allow Defendant to have its own e-discovery expert inspect Plaintiff’s computers to determine if any responsive information is still contained on the hard drives or servers of Plaintiff’s computers.  This will allow Defendant to conduct discovery on information to which it is entitled without burdening Plaintiff with the expense of hiring a discovery expert.