WePower Technologies LLC v. Deak

Background

At a status conference, the court directed the parties to discuss the plaintiff’s proposal for forensic imaging of electronic devices or storage media that might contain information responsive to the plaintiff’s document requests. The parties later reported that they could not agree on forensic imaging and submitted competing proposals for defendants’ electronic-document production.

The court recognized concerns about defendants’ ability to collect and produce electronically stored information in a way that preserved metadata. It also concluded that requiring defendants to turn over all potentially relevant devices and storage media for a forensic process substantially controlled by the plaintiff’s counsel and its vendor was not warranted at that point. The court noted that forensic examinations are intrusive and generally considered a drastic discovery measure. It found the plaintiff’s concerns not unfounded but largely speculative, and determined that defendants’ delayed discovery responses, although problematic and not excusable, did not ordinarily justify forensic examination.

Rulings on Electronic Discovery

The court denied without prejudice the plaintiff’s request for an order requiring Dr. Deak to produce electronic devices in his possession, custody, or control for forensic inspection and imaging at the plaintiff’s counsel’s offices. Defendants were permitted to complete their production of electronically stored information in the manner they considered appropriate, subject to the requirement that the production preserve all metadata in all files produced. The court set June 14, 2023, as the production deadline, unless defendants requested and received an extension beforehand.

The court stated that it would revisit the plaintiff’s request if defendants failed to meet the deadline. It further warned that if defendants’ production efforts destroyed or irretrievably altered original metadata after defendants had been placed on notice of its importance, the court was likely to view that conduct as a failure to preserve electronically stored information under Rule 37(e) of the Federal Rules of Civil Procedure. The court also stated that it was likely to find the required intent to deprive the plaintiff of the information under Rule 37(e)(2), and that it would authorize the plaintiff to seek sanctions against defendants and, if appropriate, their counsel.

Missed Discovery Deadline and Sanctions

Defendants had not complied with an earlier deadline to provide revised responses and objections to the plaintiff’s document demands. The court noted that Rule 37(b)(2) permits sanctions for violating a discovery order. In light of serious health considerations identified by defendants’ counsel, however, the court declined to impose sanctions at that time and gave defendants a short opportunity to correct the problem or explain it.

The court extended the deadline for defendants to serve revised responses and objections to June 8, 2023, and required defendants to file a letter confirming compliance. Alternatively, defendants’ counsel could file a detailed explanation for missing the June 1 deadline and a compelling justification for another extension. The court denied without prejudice the plaintiff’s request for discovery sanctions and its related request for attorneys’ fees and expenses under Rule 37(b)(2)(C).