Litigation

Court Rejects Distinction between "Original Thumb Drives" and Forensic Images of the Same, Orders Production

By K&L Gates

Océ N. Am., Inc. v. MCS Servs., Inc., 2011 WL 197976 (D. Md. Jan. 20, 2011)

In this case, plaintiff sought to compel the production of forensic images of certain 'flash' or 'thumb' drives.  The images were created by a neutral third-party expert upon agreement of the parties following defendant's refusal to produce the drives for inspection.  The original drives were then destroyed.  Defendant objected to production, arguing that plaintiff had previously requested access to the thumb drives, but not the forensic images, thus attempting to draw a distinction between the two.  The court rejected defendant's argument reasoning that 'if the original thumb drives were discoverable, Capsicum's forensic images of the thumb drives must also be discoverable, and Océ need not propound a new discovery request for what amounts to the exact same information.'

The court's brief but instructive discussion of the issue provided as follows:

Parties have a continuing obligation to supplement their responses to discovery requests.  Fed.R.Civ.P. 26(e).  Océ's Notice requested the thumb drives and other like devices.  As forensic images of the thumb drives, the Capsicum-created copies contain the exact same information the drives contained.  The images are responsive to Océ's Notice and within MCS's control because MCS has the authority to release the images to Océ.  Océ is thus entitled to receive the images.

MCS's argument also fails for practical reasons.  Oftentimes, the nature of discovery of electronically stored information (ESI) is such that the producing party first creates forensic images of potentially responsive material, then reviews the electronic files on those images for relevancy and privilege before producing a filtered trove of responsive files.  In such cases, the producing party produces identical copies of the files, but not necessarily the original files themselves.  Similarly, a party may print hardcopies of electronic files or create facsimiles of responsive documents.  None of these reproductions technically exist at the outset of litigation, but they must be produced and are sufficient to satisfy a producing party's obligations pursuant to a document request.

The instant scenario is not substantially different.  When Océ requested the thumb drives, it sought not the physical device but rather the ESI contained therein.  As a matter of practical concern, therefore, if the original thumb drives were discoverable, Capsicum's forensic images of the thumb drives must also be discoverable, and Océ need not propound a new discovery request for what amounts to the exact same information.

A copy of the full order is available here.

Full post as published by eDiscovery Law on February 08, 2011 (boomark / email).