Court Compels Defendant Employer to Produce Computers for Forensic Examination
In Davis v. Crescent Electric Company et. al., Case No. 12-5008 (D. S.D., Oct. 12, 2016), Plaintiff sued Defendants for discrimination, alleging that they discriminated against her because she was a woman by paying her less than her male counterparts, and also alleging that they retaliated against her when she complained about the problem. Throughout discovery, the parties served numerous discovery requests, and disputes arose. In 2015, Plaintiff filed a Motion to Compel Defendant Crescent, her former employer, to produce the PST computer file from its server as well as the PST file from Plaintiff’s work computer and from its Outlook archives. The court granted the motion in April 2016, and in August 2016, Plaintiff sought access to her work computer as well as two other computers so that her forensic specialist could extract the PST files for examination.
Defendant refused, claiming that the request went beyond the scope of the court’s order and that privileged and/or confidential information may be exposed if the request were granted. Plaintiff’s counsel suggested a nondisclosure agreement. The forensic expert contacted Defendants’ internet technician to request certain ESI. The technician provided some but not all of the email data requested, stating that he was told only to provide those emails and that any other data would have to be requested. Plaintiff’s counsel requested that the technician be authorized to release the remaining requested email data; however, Crescent’s counsel refused, again stating the information was beyond the scope of the order and claiming confidentiality and privilege. Plaintiff filed a supplemental Motion to Compel.
The court looked at the requirements of FRCP 37 and noted that it must look at the parties’ efforts to resolve the dispute as well as the relevance of the information sought in determining whether to grant Plaintiff’s Motion. The court found that Plaintiff had made a good faith effort to resolve the dispute by offering to enter into a nondisclosure agreement with respect to the computers. The court also found that the information sought was relevant, as there were allegations of a fake email and the metadata would expose such an issue. The court further found that Plaintiff had stated her request with sufficient specificity. Therefore, the court granted the Motion.