Court shifts half of cost of forensic search to producing party in ediscovery case

[This is a post by Jonathan Rogers. Jon is a licensed attorney in California, with a focus on technology and entertainment law. You can reach him by email at jon@jonarogers.com or follow him on Twitter at @jonarogers.]

IWOI, LLC v. Monaco Coach Corporation, N.D. Ill. May 24, 2011

Plaintiff sued claiming breach of warranty and violations of certain state laws against consumer fraud stemming the sale of a motor coach. Plaintiff sought permission to search defendants’ hard drives to locate critical email which appeared to be missing from the original discovery production. Defendants contended that the email was not “reasonably accessible” under Federal Rule of Civil Procedure 26(b)(2)(B) and, therefore, they were under no obligation to produce it.

The court specified that the burden was on the party responding to discovery to identify whether there may be materials responsive to discovery requests that are stored on its system, but because of burden or cost are not reasonably accessible. However, that party cannot simply provide documents which are easily obtained and then assert that they have produced everything that is responsive to the request. If other relevant and responsive documents exist (or may exist), the party must say so and then say why those documents cannot or should not be produced.

Here, the defendants submitted only materials that were quickly accessible on employees’ desktops and made no effort to look further, even when they became aware that there was a possibility that there may be missing documents. A forensic expert asserted that he found the critical email in two separate locations on the computer network: on a local hard drive in an orphaned, but not deleted, storage file and also on a network hard drive that had been manually backed up. The expert concluded that a native Microsoft windows search of defendants’ computers would have uncovered the email and could be undertaken by an individual with no advanced computer knowledge.

The Court did not find the failure to produce the document to be a deliberate act by defendants, but that the document could have been found with minimal effort. It recognized that plaintiff (and the court) expended additional time and effort and incurred significant additional expenses searching for this document. Therefore, the court shifted half of the cost of the electronic discovery search to defendants.

5 thoughts on “Court shifts half of cost of forensic search to producing party in ediscovery case

  1. BrianGeppert

    "a native Microsoft windows search . . . could be undertaken by an individual with no advanced computer knowledge."

    I understand that that is a compelling argument. However, do you think that the courts would be swayed by the entirely-factual counter-argument that a native Microsoft Windows search would _never_ be undertaken by an individual who _did_ have advanced computer knowledge? I mean that quite literally. No one with any appreciable amount of computer expertise would ever consider using native Microsoft Windows search. The thought would not occur to them.

    1. TomCollins

      That is extremely untrue. A "native Microsoft Windows search" is the low-hanging fruit tool that an expert may utilize. It is true that an expert would not rely on it, but to say it would not occur to them is falsehood.

  2. Jonathan

    I think the greater theme with that rationale is that if even an non savvy user could have found the file with a simple windows search, then certainly any better search method could have located the emails. Sure, a computer "expert" might not have utilized that method, but they would have found it with a more thorough search method as well. There was no excuse to not have turned over the email, because it was easily found.

  3. Zachary

    Since it was apparently so easy to find the file and the defendant obviously put half hearted effort into finding the file, I am surprised that 100% of the cost wasn't taxed to them.

    Love this blawg by the way.

    1. Jonathan

      The court seemed to imply they would have if they thought it was a deliberate hiding of the document. Here, they seemed to think it was simply laziness or ignorance. It does appear there has to be a "smoking gun" for deliberate action to be found, because like you said this is very close.

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