Design Basics, LLC. v. Carhart Lumber Co., Plaintiff’s Request for Full Forensic Image of All of Defendant’s Computers and Storage Devices Denied as “Not Reasonable or Proportional.”

In this design misappropriation case, the Court found Plaintiff’s request for a full forensic image of all the Defendant’s computers and storage devices to be unreasonable, not proportional to the issues in the case, and inconsistent with the balancing mandated under Fed.R.Civ.P.26(b)(2)(C).

After discovery disputes concerning the Plaintiff’s request to search all of the Defendant’s computers and electronic data, the Court issued an order limiting ESI discovery. Without an order from the Court or a stipulation by the parties, the order limited ESI discovery to ten custodians, a date parameter of five years before the filing of the lawsuit, sources that were reasonably accessible and 160 hours of work effort.

Subsequent to the order, the Plaintiff filed a motion to compel and the Defendant filed a motion for a protective order seeking relief from the request. Reviewing the parties’ submissions, the Court took note of the discovery efforts of the Defendant, indicating that Defendant worked with its technology vendor to determine a targeted collection that would be the most “cost effective and efficient manner” to obtain relevant ESI. Defendant’s vendor participated in interviews with Defendant’s counsel and custodians to determine the location of all potentially relevant data. The Court also noted that the vendor manually reviewed the file system of each of the custodians looking for relevant ESI and then obtained a forensic image of each of the custodian’s computers including the company president and draftsmen.

During a second hearing on the motions, Plaintiff’s counsel was unable to answer the Court’s questions as to which of the Defendants computers still needed to be imaged and for what reason. And although Plaintiff’s expert testified that the computers of secretaries and assistants are usually included in discovery efforts, the Court noted that the statement was not based on “any factual analysis of the defendant’s business operations.” The Court indicated that the Plaintiff was “entrenched in demanding the imaging of every computer or data device storage location owned or used by the defendant, without regard to the expense of imaging those locations, searching the contents, and reviewing the search results for privilege and without any informed factual analysis of which data sources would likely contain relevant information.”

Finding that the Plaintiff failed to show good cause for the collection of additional computer data, the Court reasoned that Plaintiff’s request was inconsistent with the required balancing under Fed.R.Civ.P.26(b)(2)(C). The Court held “that allowing imaging of every computer or data storage device or location owned or used by the defendant, including all secretaries’ computers, it is not reasonable and proportional to the issues raised in this litigation.”

The Plaintiff’s motion to compel was denied and the defendant’s motion for protection order was granted.

Design Basics, LLC. v. Carhart Lumber Co., 2014 WL 6669844 (D. Neb. Nov. 24, 2014).

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