The opinion of the court was delivered by: Jan M. Adler U.S. Magistrate Judge
ORDER DENYING DEFENDANT
HUAWEI'S REQUEST FOR AN ORDER REQUIRING PLAINTIFF TO ) ALLOW
HUAWEI TO COPY THE HARD DRIVES OF HER PERSONAL COMPUTING DEVICES [Doc. No. 22]
Presently before the Court is a Joint Motion for Determination of Discovery Dispute ("Joint Motion" or "Joint Mot."), in which Defendant Futurewei Technologies, Inc. d/b/a Huawei Technologies (USA) ("Huawei") seeks an order requiring Plaintiff Jun Han ("Han") to allow Huawei to copy the hard drives of her personal computing devices. (Doc. No. 22.) For the reasons set forth below, Huawei's request is DENIED. The Court instead adopts Han's proposed protocol for the production of information from her personal computing devices.
Han initiated this action on March 9, 2011 by filing a Complaint in the Superior Court of California, County of San Diego against Huawei, her former employer, and Jiangao Cui, her former supervisor, alleging harassment, retaliation, wrongful termination in violation of public policy, and other employment-related claims. (Doc. No. 1-1 at 2-38.) On April 20, 2011, Defendants filed an Answer and removed the action to this Court. (Doc. No. 1.) On August 2, 2011, Huawei filed a motion for leave to amend pleadings to assert a counterclaim against Han for various claims related to Han's alleged copying, removal, and deletion of files from her company-issued laptop. (Doc. No. 15.) Han has filed an opposition to the motion. (Doc. No. 23.) The motion is presently set for hearing on September 19, 2011.
Huawei states that in performing their due diligence with respect to the initial disclosure requirements of Fed. R. Civ. P. 26(a)(1), Defendants engaged a computer forensic firm to analyze the contents of Han's company-issued laptop. (Joint Mot., Doc. No. 22 at 7.) Upon doing so, Defendants "discovered for the first time that Han had systematically and intentionally copied, removed, and deleted thousands of files from her company-issued laptop" on July 2, 2010, shortly before Huawei terminated her employment. (Id. [emphasis in original].) Huawei suspects that Han stole confidential and proprietary information belonging to the company, and thus seeks an order permitting expedited discovery of Han's personal computing devices. (Id. at 8.) Specifically, Huawei requests that the Court implement the following protocol:
1. The inspection and copying of Han's personal computing devices will be conducted by Defendants' forensic expert, Huron Consulting Group ("Huron").
2. Han will provide any and all personal computers and external storage devices that were used by Han or anyone acting on her behalf during her employment with Huawei ("the devices") to Huron by no later than the close of business on a date to be determined by the Court.
3. Huron will image and return the devices as expeditiously as possible. Han will leave the devices in the custody of Huron for the time period necessary to image the devices . . . . A copy of the imaged devices will be provided to Plaintiff's computer forensic firm, at Plaintiff's expense.
4. All parties agree that Defendants, their counsel, and other representatives of Defendants, excluding Huron, will not access the devices or ESI [electronically stored information], except . . . pursuant to Court order.
5. Huron's imaging will capture all data and ESI contained on the devices, including, but not limited to, active files, deleted files, and the unallocated drive space.
6. Huron will analyze the devices to determine the presence of Huawei files or data.
7. On a date to be determined by the Court, Plaintiff's counsel will provide a list of search terms to Huron containing the names of any and all individuals with whom Plaintiff may have had attorney-client privileged communications. Any documents containing these search terms will not be disclosed to Defendants. Instead, the identified documents will be placed on a privilege log, and the log will be provided to counsel for Huawei.
8. Following the complete analysis of the computer, findings will be reported to Defendants.
9. Huron and its representatives agree that they will not divulge any of the contents of Han's Confidential Material to defense counsel, ...