eDiscovery Case Law: Plaintiff Compelled to Produce Mirror Image of Drives Despite Defendant’s Initial Failure to Request Metadata

http://ow.ly/bBc1a

An article by Doug Austin posted on the eDiscovery Daily blog.

This article discusses a recent case in which a plaintiff was compelled to produce a mirror image of a hard drive, despite the fact that the defendant's initial discovery request did not request metadata, nor specify the form of production.

The article states, "In Commercial Law Corp., P.C. v. FDIC, No. 10-13275, 2012 U.S. Dist. LEXIS 51437 (E.D. Mich. Apr. 12, 2012), Michigan District Judge Sean F. Cox ruled that a party can be compelled to produce a mirror image of its computer drives using a neutral third-party expert where metadata is relevant and the circumstances dictate it, even though the requesting party initially failed to request that metadata and specify the format of documents in its first discovery request."  A link to the case opinion is provided in the article.

The article further states, "Judge Cox ruled that there was a proper basis for ordering an exact copy of her drives to be created and also agreed that it was appropriate to be performed by a neutral third-party expert, finding:

• That such an examination would reveal relevant information pursuant to Rule 26 because “[t]he date Plaintiff executed the security lien is clearly relevant to a defense against Plaintiff’s attorney lien claim”;
• That there were a number of factors that gave the defendant “sufficient cause for concern” as to the authenticity of the lien documents, shooting down the plaintiff’s claim that the court was simply following a “hunch”;
• That a third-party expert is an appropriate way to execute the examination."

The article further mentioned that it was clear to the court from the pleadings that the defendant became more concerned with the authenticity of plaintiff's evidence during the discovery phase of litigation.  Therefore, the lack of the initial request by defendant for a mirror image of the hard drive was sufficiently justified to the court.