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Does Plaintiff Have “First Review” of Electronic Data Collected by an Independent Expert?

Posted on June 4th, 2014

Our last post discussed the issue of third-party subpoenas sent to Plaintiff’s prospective and current employers in Zeller v. South Central Emergency Medical Services, Inc., Civil Action No. 1:13-CV-2584 (M.D. Penn. May 20, 2014). The court denied issuing a protective order to stop the subpoenas, but did allow Plaintiff 30 days to produce the electronic data from his current employer before the subpoena was sent, recognizing Plaintiff’s legitimate privacy interest with his current employer.

The next issue in dispute was regarding plaintiff email threads, which, pursuant to a prior order were being compiled by an independent forensic analyst. Plaintiff wanted first review of all the electronic data to review for relevancy and privilege prior to turning over to Defendant. Defendant objected based on the concern for how long it will take Plaintiff to review the data.

The court found that Plaintiff was indeed entitled to first review of the electronic data from his own email account by the independent forensic examiner. The court noted that despite Defendant’s concerns over timing, the discovery deadlines in the case were 17 weeks away. Additionally, Plaintiff must review the data for privilege and relevancy. The court ordered Plaintiff to review the email chains and tender the production no later than one week after he receives the data from the forensic expert.

Defendant also sought cost-shifting for the expenses of the independent computer expert. The court looked to Rule 26(b)(2)(B), which has been interpreted to mean cost-shifting is only appropriate if the data is not readily accessible. The court also looked at the seven factors discussed by the Zubulake court regarding cost shifting. In this case, the court found the request is specifically tailored to relevant information, the parties agreed to search terms and neither party is able to obtain the data through any other means. Finally, the information sought was beneficial to both Plaintiff and Defendant, as it will uncover more about Plaintiff’s mitigation efforts (potentially benefiting Defendant) and whether Plaintiff met the criteria for FMLA leave (potentially benefiting Plaintiff.) The court ordered the parties to equally share the cost of the independent expert, but with a cap of $1,500 in maximum expenses to Plaintiff.

ILS – Plaintiff Electronic Discovery Experts

Did you know? It is estimated that global business data doubles every 1.2 years.

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