Forensic Mirror Image of Hard Drive Ordered Due To Failure to Institute Timely Litigation Hold
In Electrified Discounters, Inc. v. MI Technologies, Inc. et al., Case No. 3:13cv1332 (RNC) (D. Conn. May 19, 2015), Defendants argued that Plaintiff failed to issue a timely litigation hold and that the plaintiff ESI production was “careless and indifferent.”
Defendants presented evidence that the Plaintiff e-commerce company anticipated filing the lawsuit in 2011, but that it did nothing to preserve evidence until after it filed the lawsuit in 2013. Deposition testimony by the Plaintiff company president admitted that he regularly deleted emails every month, and that he continued this practice after the litigation commenced. He admitted during deposition that even the day before his deposition he had deleted 1,000 emails.
Defendants also accused Plaintiff of failing to conduct an adequate search for responsive documents. Plaintiff’s employees claimed to have found no responsive emails and did not produce any emails. However, the Plaintiff company president testified during deposition that he regularly communicated by email correspondence. He also had claimed not to use electronic databases for inventory, sales, and quality measures. But in one of Plaintiff’s employees testified in deposition that the company used Quickbooks, which contained electronic data about inventory and sales.
Based on the aforementioned facts, the District of Connecticut granted Defendants’ motion to compel, and ordered Plaintiff to have its counsel produce its emails in native file format. The court also ordered Plaintiff to have a forensic mirror image taken of its hard drives and Quickbooks, relying on case law that discrepancies or inconsistencies in discovery warrant a mirror image order.