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Coast to Coast Engineering Services, Inc. v. Roop

United States District Court, D. Maine

November 8, 2016

COAST TO COAST ENGINEERING SERVICES, INC., Plaintiff
v.
ROBERT ROOP, Defendant

          MEMORANDUM DECISION AND ORDER ON DISCOVERY DISPUTE

          JOHN H. RICH, III UNITED STATES MAGISTRATE JUDGE

         After a telephonic hearing held on October 20, 2016, addressing several discovery disputes in this breach of contract action arising out of the parties' settlement agreement, I ordered the parties to submit letter briefs on one issue: the plaintiff's renewed request for a forensic examination of computers owned by the defendant and his corporation, Lockatong Engineering, Inc. Report of Hearing and Order re: Discovery Disputes (ECF No. 30) at 4-5. Neither party requested further oral argument, as invited. Id. at 5. For the reasons that follow, I deny the plaintiff's renewed request for the forensic examination.

         I. Applicable Legal Standards

         The plaintiff asserts that applicable case law directs federal courts to allow forensic examination of an opponent's computers and like devices when there are discrepancies in discovery responses, or when there is a direct connection between the opponent's computers and the claims in the action, and that concerns regarding personal, confidential, or proprietary information “can be adequately addressed through protective orders[, ]” one of which is already in effect in this case. Plaintiff's Letter Brief dated October 27, 2016, at 4. The defendant does not cite any authority in support of his position.

         A court should not allow a forensic examination of a party's computers in order to help the party seeking the examination to confirm a “highly speculative conjecture” that materials responsive to duly served requests for production have not been produced and are present on those computers. Williams v. Massachusetts Mut. Life Ins. Co., 226 F.R.D. 144, 146 (D. Mass. 2005). In order to succeed, the party seeking the examination must present credible evidence that the opposing party is unwilling to produce computer-generated documents or that it has withheld relevant information. Id. Courts should be particularly reluctant to allow such searches where the opposing party has undertaken its own search and forensic analysis and has sworn to its accuracy. Id. “[T]he inquiring party must present at least some reliable information that the opposing party's representations are misleading or substantively inaccurate.” Id.; see also Covad Communications Co. v. Revonet, Inc., 258 F.R.D. 5, 12 (D.D.C. 2009).

         “[I]t does not automatically follow that every time a litigant alleges that the other party's electronic production is deficient in some regard the appropriate next step is to conduct a forensic examination.” Id. at 13. While inconsistencies or improprieties in a party's discovery responses may justify forensic examination of related computers, id. at 12; Ameriwood Indus., Inc. v. Liberman, No. 4:06CV524-DJS, 2006 WL 3825291, at *4 (E.D. Mo. Dec. 27, 2006), there must be a “history of incomplete and inconsistent responses to [the inquiring party's] production requests[, ]” Jacobson v. Starbucks Coffee Co., No. 05-1338-JTM, 2006 WL 3146349, at *7 (D. Kan. Oct. 31, 2006), before a forensic examination will be allowed. The inquiring party's skepticism that the opposing party has produced all of the documents sought is not sufficient to warrant a forensic examination. Balboa Threadworks, Inc. v. Stucky, No. 05-1157-JTM-DWB, 2006 WL 763668, at *3 (D. Kan. Mar. 24, 2006) (citing McCurdy Group v. American Biomedical Group, Inc., 9 Fed.App'x 822, 831, 2001 WL 536974 at *7 (10th Cir. 2001)).

         II. Discussion

         A. Background

         The gravamen of the complaint in this action[1] is an allegation that the defendant breached a written agreement terminating his franchise relationship with the plaintiff by failing to return to the plaintiff “certain materials he received in his capacities as [the plaintiff's] Chief Operating Officer[] and Board of Directors member.” Complaint for Injunctive Relief and Damages (ECF No. 1) at 1. It contends that a forensic examination of Lockatong's computer systems is “uniquely appropriate” because there are “numerous discrepancies as to the disposition of materials Mr. Roop and Lockatong received electronically from [the plaintiff].” Plaintiff's Letter Brief at 1.

         The specific “discrepancies” identified by the plaintiff are the following:

1. The defendant testified at deposition that Lockatong put a new server and email system into operation on January 1, 2015. He testified that the old server contained materials received from the plaintiff, that these files were left on the old server, and that the files left on the old server were destroyed when he crushed the old server a few months later.
2. The day after his personal deposition, the defendant testified as Lockatong's corporate representative that the plaintiff's electronic files were deleted during a search process in the fall of 2014. The previous day, he testified that he had destroyed hard copy materials in the fall of 2014 but did not mention that this included electronic files.
3. The defendant testified that none of Lockatong's emails were transferred from its exchange server to Rackspace, a cloud-based service, beginning in January 2015, and that after the transfer, no Lockatong employee would be able to access email received before the transition. Mr. Landau, who assisted with the transition, testified that emails from the exchange server were transferred to Rackspace and would generally be accessible to employees after the transfer.
4. During the corporate deposition, the defendant testified that files related to his work for the plaintiff were kept in an electronic folder labeled “administrative” and that he asked Landau to transfer that folder to the new server. After the deposition was re-opened, the defendant testified that the plaintiff's files were stored in his personal folder, which was password-protected, that the administrative folder was in a larger folder labeled “Criterium” until 2015, when it was relabeled ...

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