Court Grants Motion to Compel, Orders Forensic Imaging of Defendants’ Computers

Weatherford U.S., L.P. v. Innis, No. 4:09-cv-061, 2011 WL 2174045 (D.N.D. June 2, 2011)

Plaintiff alleged that a former employee had downloaded its confidential information and used it to “jump start” his own competing company.  Defendant Innis acknowledged that he had downloaded the information, but denied accessing or using it as plaintiff alleged.  Forensic examination of the thumb drive containing the downloaded information contradicted his claims.  Thereafter, plaintiff filed a motion to compel production of  materials previously identified in a subpoena duces tecum and, “to minimize disruption to defendants’ operations and alleviate their concerns about the disclosure of privileged communications,” proposed that an expert of plaintiff’s choosing be allowed to image defendants’ computers at plaintiff’s expense, and that defendants be allowed to screen the imaged documents prior to their production.  Citing Innis’s acknowledgment that he had copied plaintiff’s confidential information and evidence that he had accessed it thereafter, the court granted plaintiff’s motion to compel.

Late in the evening on the day he was terminated, Innis returned to plaintiff’s offices, logged onto the intranet site, and downloaded a number of files onto a thumb drive.  Approximately two weeks later, Innis formed a new, competing oil services company.  Plaintiff filed suit.  Although Innis acknowledged accessing and downloading plaintiff’s files, he claimed that “he did not later open or go through” them.  Plaintiff’s expert’s examination of the original thumb drive contradicted those claims, however.  Thereafter, in furtherance of its motion to compel production of previously subpoenaed documents, plaintiff sought access to defendants’ computers.  Specifically, plaintiff proposed that a forensic expert of its choice be permitted to create a forensic image of defendants’ computers at plaintiff’s expense and that defendants be given an opportunity to review the imaged documents for privilege, etc. before production to plaintiff.  Defendants objected or, in the alternative, proposed that a mutually agreed upon expert be retained “for the court’s benefit” to “shepherd the imaging of computers and the dissemination of any documents obtained.”

Taking up the issue, the court acknowledged defendants’ confidentiality objections but noted that “[i]t is not unusual” for courts to allow mirror imaging of hard drives “that contain documents responsive to an opposing party’s request for production … particularly in cases where trade secrets and electronic evidence are both involved.”  The court recognized, though, that courts have been “cautious” where the request “is extremely broad in nature and the connection between the computers and the claim in the lawsuit are unduly vague or unsubstantiated in nature.”

Here, the court reasoned, plaintiff’s claims were “neither vague nor unsubstantiated.”  The court went on to state that “Innis’s acknowledgment that he downloaded [plaintiff’s] files to a thumb drive without permission is enough to provide a nexus between [plaintiff’s] claims and its need for images of defendants’ computers.”  The court also noted that plaintiff’s expert had proffered opinions contradicting Innis’s claims that he had not accessed the thumb drive.  Accordingly, plaintiff’s motion was granted.

The court further rejected defendants’ proposed examination protocol upon concluding that plaintiff’s proposal “should be sufficient to address defendants’ concerns and ensure that defendants are not unduly burdened.”