Because documents produced from computers will represent only a small fraction of the electronically stored information that may exist, a request for production during discovery may not be enough. To get at all the relevant documents, you may want to demand the physical inspection of the responding party’s computer system under CCP §2031.010(c).
A request for production will not include putatively “deleted” documents; you can only get such documents with an inspection of the computer system itself. Mirroring the hard drive, i.e., making an exact copy (bit for bit) of a hard drive, will obtain copies of all existing and possibly some deleted files, but other deleted data can only be retrieved by an expert from the original hard drive.
We’re not just talking about computers here — an inspection demand could include printers (which contain hard drives and thus documents that may be been otherwise “deleted”) and other places where electronic information may be stored.
The benefits of inspecting a computer system are obvious, but the decision whether to demand inspection will ultimately be an economic one. In many cases, valuable evidence in a computer system can be discovered only by a trained computer expert, and this isn’t cheap. You have to balance the potentially high cost of the examination against the possibility of discovering important evidence that you might not otherwise discover.
To fast track an inspection when exigent circumstances make it likely that electronic files will be deleted soon or have recently been deleted, e.g., under a company’s automated document destruction policy, you can ask the court for immediate inspection of the computer.
A physical inspection of a company’s computer system will no doubt raise issues relating to trade secret protection, as well as proprietary and confidential information, leading the responding party to seek a protective order. CCP §2031.060.
You can argue in response that a physical inspection is necessary for the identification and preservation of evidence, but given the intrusiveness of a computer system inspection by the opposing party in litigation, a court may be inclined to grant a motion for a protective order barring the examination. To avoid being barred from inspecting the computer system, propose that the court appoint a neutral expert to perform the inspection. The parties may split the cost of the inspection. Each party’s experts should be present at the inspection to monitor the computer areas examined and the appointed expert’s methods.
To reduce the likelihood of a motion for a protective order in the first place, consider offering to enter into a strict confidentiality agreement to protect sensitive information stored on a computer from public disclosure and to limit its use to the pending litigation.
For everything you need to know about demands for inspection or production, go to CEB’s California Civil Discovery Practice, chap 8. Also check out chap 4 of that book on electronic data and discovery.
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