On motion of plaintiff Covad, the judge decided that plaintiff should be permitted to conduct a forensic search on defendant Revonet’s database but not – at this point — on defendant’s email servers.
The judge notes that in almost all cases the requesting party argues that the email production is incomplete. If courts were to order a forensic examination only based on alleged deficiencies in production, then:
“[t]his would result in forensic examinations in virtually every case, which would increase the cost of litigation involving electronically stored information markedly not only because of the cost of the examination itself, but also because it would yield information that would have to be sorted for relevance and privilege.”
The judge noted that defendant tried to involve plaintiff in the process by repeatedly asking plaintiff’s counsel:
“to suggest search terms, and Covad’s counsel did not respond to any requests. Given that history it is unfair to allow Covad to fail to participate in the process and then argue that the search terms were inadequate. This is not the kind of collaboration and cooperation that underlies the hope that the courts can, with the sincere assistance of the parties, manage e-discovery efficiently and with the least expense possible. See The Sedona Conference Cooperation Proclamation (2008), available at http://www.thesedonaconference.org/content/tsc_cooperationproclamation.”
In conclusion, the judge permitted a forensic computer analyst for plaintiff to make forensic images of defendant Revonet’s database servers and of individual PCs and to then to search the images within the terms of a protective order. While defendant had to pay the cost of making the images, plaintiff had to pay the cost of searching the images. The judge reserved decision on whether order a forensic examination over the e-mail servers until the report on the forensic search on database is issued and the parties have an opportunity to confer.
Full text available at http://www.gpo.gov…
Related Document: The Sedona Conference® Cooperation Proclamation