A District Court in Missouri became one of the first in the country to employ the new inaccessibility analysis under Rule 26(b)(2)(B). Ameriwood v. Liberman, 2006 WL 3825291, 2006 U.S. Dist. LEXIS 93380 (E.D. Mo., Dec. 27, 2006). The plaintiff in another trade secret theft case moved to compel the defendants (former employees of plaintiff) to allow a complete mirror image inspection of the hard drives on all of their computers, including their home computers, and other portable storage devices (like thumb drives). The defendants objected on the basis that the mirror imaging sought constituted a request for inaccessible data, was unnecessary and intrusive.
A mirror image of a hard drive is an exact duplicate of the entire drive, including deleted files, slack and free space. Id. at fn. 3. A trained computer forensic expert can examine a mirror image of a drive and reconstuct files that have been deleted, thus transforming them from inaccessible to accessible. This process can, however, be quite expensive. As a general rule, mirroring or inspection of an entire hard drive is not permitted without good cause. It is analogous to allowing a requesting party to inspect an entire paper filing cabinet, instead of just the particular files in the cabinet that are relevant, and search the garbage cans too.
Still, in this case the court granted the employer’s motion because: (1) of the close relationship between the plaintiff’s claims and the defendant’s computer equipment; (2) facts placing in doubt that all responsive documents have been produced; and, (3) Plaintiff’s willingness to pay for the expert forensic examination costs involved in the mirroring.
The court followed the new burden shifting analysis of new Rule 26(b)(2)(B) to reach this result. The Rule provides:
On motion to compel discovery . . . , the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
The defendants first argued that they had already searched their ESI and produced all discoverable ESI and thus there was no need for a complete mirror image production too. In essence, they argued that this was “just a fishing expedition” not permitted under the rules. Plaintiff effectively countered by producing an email to defendants that they had obtained by subpoena of a third party. This email should have been in defendants’ custody and produced by them, but it was not. This cast doubt on the completeness of defendants’ production, and thus supported plaintiff’s argument that the mirroring was needed.
Defendants next argued that the mirror was a request for ESI not reasonably accessible to them because of undue burden and cost. Defendants supported this objection with affidavits of the significant costs involved in mirroring all of their computers and drives, recovering deleted information and then translating it into reviewable formats. The court agreed that defendants had established that the ESI requested was inaccessible to them under Rule 26 (b)(2)(B). But, that is not the end of the analysis. The rule goes on to still allow discovery of inaccessible data if the requesting party, here the plaintiff, shows good cause.
The plaintiff sustained this burden under the seven point good-cause inquiry suggested by the advisory committee notes to the rule. The third criteria was particulary persuasive in this case: “(3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources.” This factor was met by the email produced by the third party, but not by defendants.
Good cause for the mirroring requested was also found in the allegations of the complaint itself, in that the trade secret theft here was allegedly accomplished by the computers in question. As the court explained:
Furthermore, in cases where a defendant allegedly used the computer itself to commit the wrong that is the subject of the lawsuit, certain items on the hard drive may be discoverable. Particularly, allegations that a defendant downloaded trade secrets onto a computer provide a sufficient nexus between plaintiff’s claims and the need to obtain a mirror image of the computer’s hard drive. . . . .In the instant action, defendants are alleged to have used the computers, which are the subject of the discovery request, to secrete and distribute plaintiff’s confidential information. How and whether defendants handled those documents and what defendants did with the documents is certainly at issue. The Court recognizes defendants’ privacy concerns over the information contained on their computers, but finds that the procedure below in addition to the Court’s protective order sufficiently addresses these interests.
In performing the good-cause inquiry, the Court is also permitted to set conditions for discovery, including but not limited to payment by the requesting party of part or all of the reasonable costs of obtaining information from the sources that are not reasonably accessible. See Fed. R. Civ. P. 26(b)(2) advisory committee’s note. As plaintiff does not object to incurring the costs for the requested procedures and defendants do not perform these procedures in the regular course of their business, plaintiff will incur the costs involved in creating the mirror images, recovering the information, and translating the information into searchable formats, as described below. For the above reasons, this Court finds that plaintiff has shown good cause to allow it to obtain mirror images of defendants’ hard drives under the following conditions.
The court then set forth conditions designed to protect the privacy rights of defendants to the ESI on their computers, including their home computers. The court followed the procedures set forth by the seminal case in this area, Playboy Enterprises v. Welles, 60 F. Supp. 2d 1050, 1054 (S.D. Cal. 1999). Essentially, a third party expert does the exam and restoration, and then turns over a copy to defendants’ counsel of all ESI found and recovered, including deleted files. Defendants then review the restored ESI and produce all data responsive to discovery requests, and log any responsive but privileged ESI. Thereafter plaintiff may file motions to compel if warranted.