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Inspecting Your Opponent's Database During E-Discovery, When Can You Do It?

Created on June 27, 2013


Vice President, E-Discovery

In some cases, being overly aggressive in pursuit of specific e-discovery terms is unproductive and bogs down the e-discovery process. Case in point is Carolina Bedding Direct, LLC v. Downen (M.D. Fl. June 4, 2013) in which the plaintiff's renewed an emergency motion to inspect the defendant's databases. The court in this case denied the plaintiff's request based on two factors: (1) “Rule 34 does not grant unrestricted access to a respondent's database compilations," and (2) the plaintiff failed to prove that the defendant was non-compliant in responding to the plaintiff's discovery requests.

In this trade secret misappropriation and restrictive covenant case, the plaintiff, Carolina Bedding Direct, sought permanent injunctive relief from the defendant, Downen, for breaching a non-compete provision. During e-discovery, the plaintiff requested inspection of (a) all the defendant's computers, hard drives and electronic devices, and (b) the email addresses and log-in information for all the defendant's email accounts. When the defendant did not comply, the plaintiff motioned the court to compel defendant's compliance. The court rejected the motion based on the proportionality principle, “the proposed discovery [was] not outweighed by the likely benefit."

Based on the court's ruling, the plaintiff filed a renewed motion to compel the defendant's compliance with the plaintiff's request for inspection by more narrowly tailoring its motion. In this motion, the plaintiff requested the defendant's computer, two cell phones and the log in information for two of the defendant's email accounts. Unfortunately for the plaintiff, the same result occurred − the court rejected its renewed motion.

According to the 11th Circuit, under FRCP Rule 34(a) “a party may request the responding party to produce and permit the requesting party to inspect and copy any designated documents." The court made one key clarification in that this rule does not give “unrestricted access to a respondent's database compilations." It only “allows a requesting party to inspect and to copy the product (whether it is a document, disk or other device) resulting from the respondent's translation of the data into a reasonably useable form." Since the plaintiff was not requesting to inspect the form in which data was produced but rather gain direct access to the defendant's databases, the court ruled Rule 34 did not apply. Instead the court deemed that to gain access to a party's databases, it needed to make a “factual finding of some non-compliance with discovery rules and protect respondent with respect to preservation of his records, confidentiality of non-discoverable matters and costs."

Essentially the court performed a proportionality analysis to determine if the benefit of allowing access outweighed the burden. Simply put the answer was no. Giving access to inspect would be outweighed by the burden caused.

The court found no reason to disbelieve the defendant's prior certification that he had fully responded to all the plaintiff's discovery requests despite evidence that certain emails and text messages had not been produced. It was also noted that the information that the plaintiff was trying to access would “serve no significant benefit" in proving the plaintiff's case since the defendant never disputed that the two parties were in competition with each other. Moreover, the court stated, “allowing Plaintiff to have wholesale access to Defendant's email accounts and telephone [was] not consistent with the limited discovery allowed in advance of the hearing on the motion for preliminary injunction."

THE E-DISCOVERY BEAT'S TAKE

Remember, the first rule of the FRCP is to “secure the just, speedy, and inexpensive determination of every action and proceeding." So when two parties disagree concerning e-discovery parameters, the court will rely on the proportionality, cost-benefit analysis to determine which option aligns closer to FRCP Rule 1.

But even if a party may have a valid claim for narrowing or expanding the scope of discovery, the court during a proportionality assessment will not enforce discovery orders if the party cannot produce or defend its reasoning for the order. This is where e-discovery technology can help. Search analytics, e-discovery metrics and cost projections provide just a few ways for legal teams to factually prove that proposed e-discovery parameters are reasonable. Furthermore, documented processes automatically tracked by e-discovery software systems as to the steps and procedures used to produce data can help shield parties when responding to these motions.

To learn more about e-discovery technology and how it can enable legal teams to create defensible e-discovery processes in court, watch Exterro's on-demand educational webcast title “Proportionality vs. Defensibility in E-Discovery Collections" here.

Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin. Contact him directly at michael.hamilton@exterro.com.