Plaintiff May Attempt Recovery of Deleted Files at Its Own Cost

Simon Prop. Group L.P. v. mySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000)

Although the factual record on plaintiff’s motion to compel was “extremely sparse,” the court found that plaintiff had shown “some troubling discrepancies with respect to defendant’s document production.” 194 F.R.D. at 641. The court ruled that the plaintiff was entitled to attempt – at its own expense – the task of recovering deleted computer files from computers used by four key players, whether at home or at work. Id.

The challenge, as stated by the court, was to arrange for this effort to be undertaken without undue burdens on defendant, in terms of its business, its relationships with its attorneys, and the privacy of its founders. The court concluded that the basic structure adopted by Playboy Ent., Inc. v. Welles, 60 F.Supp.2d 1050 (S.D. Cal. 1999) offered the best approach, tailored as follows:

• Plaintiff to select and pay an expert to create a mirror image or snapshot of hard drives in question. Defendants may object to the selection of the expert.
• Although paid by the plaintiff, expert to be appointed by court to carry out inspection and copying as an officer of the court. Expert and any assistants to sign the protective order in the case. Because expert to serve as an officer of the court, disclosure of a communication to the expert would not be deemed a waiver of the attorney-client privilege or any other privilege.
• Expert to use his or her expertise to recover and provide in a reasonably convenient form to defendant’s counsel all available word-processing documents, emails, presentations, spreadsheets and similar files. To the extent possible, expert to provide to defense counsel available information showing when any recovered “deleted” files were deleted, and available information about the deletion and contents of any unrecoverable deleted files.
• After receiving the records, defense counsel to review them for privilege and responsiveness, and supplement defendant’s responses to discovery requests as appropriate.
• Expert to retain until the end of the litigation the mirror image copies of the hard drives and a copy of all files provided to defense counsel. At end of the litigation, expert to destroy the records and confirm such destruction to the satisfaction of defendants.

Id. at 641-44.