In Denying Forensic Exam, Court Rules that FRCP 34(a) Does Not Create A Routine Right of Direct Access To Electronic Information Systems
- ILS Team
In The Ruby Slipper, LLC v. Belou, et al, No. 18-1548 (E.D. La April 6, 2020), Chief Magistrate Judge Karen Wells Roby denied Plaintiff’s Motion for Supplemental Forensic Examination which sought to forensically examine previously undisclosed computers on the grounds that Defendant did not violate the previous Order on Protocol for Forensic Examination and that Plaintiff failed to establish that the additional forensic examination would likely produce any relevant information.
The case stems from allegations that Defendant breached Plaintiff’s trust by advising Plaintiff to terminate a lease prematurely and by using Plaintiff’s business model to open a competing restaurant. After Plaintiff instituted the case, the District Judge entered the parties’ Consent Temporary Injunction Order enjoining Defendant from “possessing and using confidential, proprietary information and trade secrets belonging to [Plaintiff].”
Defendant subsequently admitted to deleting multiple emails related to the case and in response, Plaintiff moved for sanctions on the grounds of spoliation. Although the Court denied the motion, the Court also entered the parties’ ESI Protocol Order permitting Plaintiff to physically seize and forensically examine Defendant’s personal computers (including any desktop computers, laptop computers, tablets or smart phones). Pursuant to the ESI Protocol Order, a forensic analysis was performed on Defendant’s HP Pavillion desktop, which revealed the continued existence of previously-deleted emails. Following the forensic examination, Plaintiff also discovered that in addition to the HP Pavillion desktop, Defendant kept two other computers at his new place of work–a desktop and a laptop. In a motion to forensically examine the additional computers, Plaintiff argued that Defendant’s failure to identify and produce these computers violated the Court’s previous Order and that Defendant actively concealed the additional devices from the Court to avoid subjecting them to forensic analysis.
In its ruling, the Court stated that Rule 34(a) “is not meant to create a routine right of direct access to a party’s electronic information system” as it raises issues of confidentiality or privacy.'” Brand Servs., LLC v. Irex Corp., Civ. A. No. 15-5712, 2017 WL 67517, at *3 (Roby, M.J.) (E.D. La. Jan. 6, 2017). Thus, “[c]ourts should guard against undue intrusiveness resulting from inspecting or testing such systems.” Id. The Court continued, “[a] mere desire to check that the opposition has been forthright in its discovery responses is not a good enough reason for a court order compelling an exhaustive computer forensic examination.” NOLA Spice Designs, LLC v. Haydel Enterprises, Inc., Civ. A. No. 12-2515, 2013 WL 3974535, at *2 (E.D. La. Aug. 2, 2013) (quotations omitted).
In addition, “mere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures.” Id. As such, “compelled forensic imaging is not appropriate in all cases, and courts must consider the significant interests
implicated by forensic imaging before ordering such procedures, including that they must account properly for the significant privacy and confidentiality concerns.” Id. at *3 (quotations omitted).
Consequently, the Court concluded that Plaintiff failed to justify the need to compel additional examination on two grounds. First, the previous order compelled the examination of devices owned or leased by Defendant. The laptop at issue here was not Defendant’s personal device but rather it belonged to a non-party who merely lent it to Defendant. Accordingly, Defendant did not act deceptively in failing to identify a laptop that he neither owned nor leased. Second, the Court found that Plaintiff failed to establish that forensic examination would likely produce any relevant information in the case at hand and that such an intrusive examination is more indicative of a fishing expedition. As such, the Court declined to compel forensic examination of the additional laptop.