In Hawkins v. The Center for Spinal Surgery et. al., Case No. 12-1125 (Jun. 18, 2015), the Middle District of Tennessee recently denied an employer’s motion to compel a forensic examination of a former employee’s flash drive.
Plaintiff sued Defendant, her former employer, for employment discrimination and unlawful retaliation. Plaintiff, an African-American, claims that Defendant paid her less than similarly-situated Caucasian employees. Discovery in the case established that during her employment, Plaintiff obtained confidential payroll information from Defendant without permission and provided it to the EEOC to support her discrimination claim. Plaintiff copied these records to a flash drive, and claimed to produce the records from the flash drive. Based on reviewing Plaintiff’s production, Defendant believed the production “likely incomplete” and sought forensic examination. Specifically, Defendant asserted that it received a document from the EEOC that did not have Defendant’s Bates stamping but which Defendant believed the EEOC had obtained from Plaintiff yet that document did not exist in Plaintiff’s production. Defendant also argued that forensic examination could disclose whether Plaintiff had transmitted stolen documents to third parties or deleted documents from the flash drive before producing it.
The court observed that, generally, courts have been cautious about compelling mirror imaging of computers or inspection of computer hard drives without good cause. The magistrate judge found that, after physically examining the document, the Bates number of the document in question had been cut off the bottom, meaning that no discrepancy existed sufficient to justify examination of the flash drive. The court also found that Defendant offered no evidence that Plaintiff had transmitted any documents to third parties or that she had deleted any documents before producing the flash drive. Defendant had deposed Plaintiff twice and had also produced paper copies of all the documents on the flash drive. Based upon these facts, the court denied Defendant’s motion to compel forensic examination of the flash drive.