Court Upholds Order Directing Plaintiff to Submit USB Drive for Forensic Imaging
In employment discrimination case Bazzi v. YP Advertising & Publishing, LLC, Case No. 15-10741 (E.D. Mich., Feb. 3, 2016), Plaintiff testified at deposition that she had downloaded documents onto a USB drive from one of Defendant’s computers during her employment. Plaintiff allowed Defendant to copy the documents but refused to allow forensic imaging of the USB drive, which Defendant sought for purposes of preserving metadata. Defendant eventually filed a Motion to Compel, which the magistrate judge granted. The order directed Plaintiff to submit to the forensic imaging of the USB drive at Defendant’s expense through an agreed-upon third party. The forensic imaging was to take place by February 5, 2016. Plaintiff filed an objection to the order and a motion to stay the order pending review of the objection.
The district court judge noted that it could only set aside a magistrate judge’s order on a nondispositive pretrial motion if “clearly erroneous or contrary to law.” Plaintiff argued that the magistrate judge erred in finding that the metadata could lead to discoverable evidence that Plaintiff had violated company policy, which could bolster Defendant’s after-acquired evidence defense. Plaintiff argued the metadata evidence was not in fact relevant, and that the magistrate judge improperly failed to consider whether Defendant even had a policy that would have prohibited Plaintiff from copying the ESI (to which Defendant replied that it did have such a policy). The court disagreed with Plaintiff, ruling that the magistrate judge acted appropriately and not in violation of the law.
Plaintiff also argued that Defendant did not show a substantial need for the materials under FRCP 26(b)(3)(A)(ii), as Defendant could have download the data from its own computer. The court again disagreed, noting that the rule only applies for documents prepared in anticipation of litigation.
Finally, Plaintiff argued that Defendant improperly engaged in delay tactics. Again the court disagreed, finding no evidence of delay, with Defendant having timely deposed Plaintiff and demanding the metadata as soon as it learned of the USB drive. In sum, the court found that Plaintiff had not shown clear error or violation of law in the magistrate’s order, and thus overruled Plaintiff’s objection.
ILS – Plaintiff ESI Experts