eDiscovery Daily Blog

Court Denies Request for Production of Forensic Image: eDiscovery Case Law

In Apex Colors, Inc. v. Chemworld Int’l Ltd., Inc., No. 2:14-CV-273-PRC (N.D. Ind. March 8, 2018), Magistrate Judge Paul R. Cherry, finding (among other things) that the defendants “have not met their burden of showing that” the plaintiff had control of the data, denied the defendants’ motion to compel the plaintiff to produce supplemental documents, including a forensically imaged hard drive.

Case Background

In this case involving an LLC (Finos) that was dissolved, the settlement agreement stated that the documents and data in the possession of two of the partners (Boggesses) at the time of the dissolution became property of the partners.  An item in dispute was a computer used by an employee when he was working for Finos, which was in the possession of those partners at the time of the dissolution and became their property.  During discovery, the plaintiff learned that the Finos computer was in the possession of those partners, who were not parties to this litigation. The plaintiff served the partners with a subpoena for materials relevant to the litigation and asked for full access to the entire Finos computer without search term limitations on the basis that it was a computer used at Finos by a Finos employee.

Once the partners were able to get the computer up and running, they proposed to have a third party provider image the computer and proceeded to do so, upon consent from the plaintiff, but also suggested that the provider run a date filter limited to files prior to October 31, 2012 because after that date, the computer was used by a competitor to both the plaintiff and defendant (NeoNos).  The plaintiff notified the defendants once the computer had been imaged and the defendants contacted the provider, the partners and the plaintiff to assert that they believe that they are entitled to the entire forensic image of the Finos computer as responsive to their 2014 and 2017 Requests for Production of Documents served on the defendants.  The same day, the plaintiff responded and indicated that the defendants had a right to what the plaintiff received from the Rule 45 subpoena served on the partners, that the plaintiff believed that the defendants had received all the materials and that the plaintiff did not have control over property in possession of the partners.  As a result, the defendants filed an instant motion to compel.

Judge’s Ruling

In analyzing the defendants’ motion, Judge Cherry noted that “Federal Rule of Civil Procedure 34 provides that a party may be compelled to produce electronically stored information ‘in the responding party’s possession, custody, or control.’”  With regard to the defendants’ claim, Judge Cherry stated “Defendants have not argued that they are entitled to information dated after October 31, 2012, at which point the computer was in the possession and control of and was being used by the Boggesses and/or NeoNos, who are not parties to this litigation.”

Judge Cherry also noted that “the evidence before the Court is that Defendants have been given or given access to all of the documents, data, and forensic images that Apex has obtained from the Boggesses through the subpoena enforcement action by Apex against the Boggesses, including the production from the Finos computer. Apex was not given a full forensic image of the Finos computer hard drive. Thus, Apex has fulfilled its obligation under Rule 34with regard to the information it obtained through the subpoena served on the Boggesses.”  And, he ruled that “Defendants have not met their burden of showing that Apex ‘controls’ information, documents, data, or physical property in the possession of the Boggesses.”  As a result, he denied the defendants’ motion.

So, what do you think?  When should possession, custody and control extend to third parties and when should it not?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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