The Court in Radian Asset Assur., Inc. v. College of the Christian Bros. of N.M., wrestled with the issue of compelling the return of an imaged hard drive that had been produced in discovery in a lawsuit with a stipulated protective order.
The Court required the hard drive returned and any copies destroyed. Radian Asset Assur., Inc. v. College of the Christian Bros. of N.M., 2010 U.S. Dist. LEXIS 107983 (D.N.M. Sept. 24, 2010).
The Defendants produced a hard drive pursuant to subpoena and a Court order. The Defendants thought they had deleted all the email on the hard drive, claiming they would only produce email responsive to Court ordered time frames and search terms. Radian Asset Assur., at *3.
The Defendants also removed any files containing the names of their past attorneys subject to privilege. Radian Asset Assur., at *3.
The Defendants also removed the folder of the college president’s assistant, claiming the data voluminous, irrelevant, and that anything responsive had already been produced. Radian Asset Assur., at *3.
A Discovery Gift
The college president’s secretary’s deleted folder and email were readily accessible.
The Plaintiff’s expert claimed the data could have been easily restored. Radian Asset Assur., at *4-5.
While the Plaintiffs did not restore or review the data, they did create a list of the allegedly deleted names and files for the Court’s review. Radian Asset Assur., at *4-5.
The Plaintiff sought Court approval to review the data and return anything privileged to the Defendants. Radian Asset Assur., at *5.
A High Earth Orbit Launch into Motion Practice
The Plaintiffs argued the secretary’s data was not voluminous and was “only” 480 MB. Moreover, there were file names that should have been produced in discovery. Radian Asset Assur., at *6. The Plaintiff also made several representations on the preservation of privilege and that the Defendant would not need to include any other ESI from the secretary in future ESI searches. Radian Asset Assur., at *7.
The Defendants had a very different outlook on the hard drive data.
The Defendant argued the Plaintiff was “invading” the attorney-client privilege on ESI that was specifically redacted from production. Radian Asset Assur., at *7.
The Defendant further argued that it produced a “redacted” hard drive as a professional courtesy before depositions. Radian Asset Assur., at *7. Moreover the hard drive was “provided in a readily-usable, readable format that did not require the use of computer forensic software or other investigative tools to review and search the unredacted files and information.” Radian Asset Assur., at *7.
The Defendant claimed the Plaintiff did not need their consultant to review the hard drive and did so “only if” the Plaintiff “wanted something more than it was being intentionally provided would it need to send the hard drive to its expert.” Radian Asset Assur., at *8.
Without getting into the merits, the Court ordered the hard drive returned and any copies destroyed. Radian Asset Assur., at *8.
Bow Tie Thoughts
Parties need to understand the nature of computers and the challenges in producing what they consider to be “redacted” electronically stored information on a hard drive. I personally think that redacting data on a computer hard drive for production is like trying to redact daylight; something will shine through.
If a party is concerned with not producing specific data, instead of deleting folders and email on a forensically imaged hard drive, one option is to do a targeted collection of what you want to produce. This avoids the issue “Did we delete everything?” issue. Moreover, hoping the opposing party will not restore any data is a dangerous presumption. Collecting specifically what needs to be produced is a better practice then deleting what you do not want to produce.
This case could easily have been subject to Federal Rule of Evidence Rule 502 analysis on whether the data was inadvertently produced. That analysis would have included whether the producing party took “reasonable steps to prevent disclosure” and “promptly took reasonable steps to rectify the error.” Fed. R. Evid. Rule 502(b). The test generally is 4 or 5 parts, including:
1. The reasonableness of the precautions taken in view of the extent of document production
2. Number of inadvertent disclosures
3. Magnitude of disclosures
4. Measures taken to mitigate the damages
5. Overriding interests of justice.
Merenda v. Detriot Med. Ctr., 2009 WL 454670 at *4 (E.D. Mich. 2009).
I think there could be an argument that merely deleting information on an imaged hard drive is unreasonable. There are times when it might be acceptable, but given the level of forensic tools commercially available, that might not be a reasonable production. This possibly could generate a large number of inadvertent disclosures and ultimately a waiver of any privilege. While that was not the issue in this case, this issue will likely be litigated in the future.