INTERIM ORDER RE: DISCOVERY DISPUTE JOINT REPORT #2 [Re: Docket No. 65]
On March 6, 2012, the parties in the above-captioned action filed Discovery Dispute Joint Report #2 to settle a dispute over (1) whether plaintiff is entitled to conducting forensic imaging of 19 all company computers owned by defendant Creative Imaging by Robert Garcia ("Creative"), and 20 (2) if so, who should bear the cost. Dkt. No. 65 ("DDJR"). Lifetouch contends that the computers 21 contain evidence that defendant Kimberly Moss-Williams brought Lifetouch's trade secrets to 22
Creative, a rival company, when she left Lifetouch to take a job at Creative. Lifetouch further 23 contends that Moss-Williams destroyed the thumb drive used to transport the proprietary data from 24 a Lifetouch computer to Creative's computer(s), which constitutes evidence spoliation that justifies 25 requiring the defendants to pay for the total cost of the forensic imaging, estimated to be between 26 $315,000 and $350,000. Defendants assert that, while Moss-Williams did accidentally take some 27 Lifetouch files when she left the company, she had no intent to steal trade secrets, took no data that 28 constitutes a trade secret, and never uploaded any such information to Creative's computers or otherwise gave proprietary data to Creative for use in its business. They further argue that being 2 made to pay the entire cost of forensic imaging of all their computers would pose an undue burden 3 due to the time and cost required. 4 yet agreed to any actual terms. They have indicated some willingness to share in the cost. While 6 Lifetouch would prefer to use a forensic imaging specialist it has designated to be deposed as its 7 representative in this action, the parties have also expressed a willingness to use a neutral third-party 8 company to perform the forensic imaging. 9
"It is not unusual for a court to enter an order requiring the mirror imaging of the hard drives of any computers that contain documents responsive to an opposing party's request for production of documents." Balboa Threadworks, Inc. v. Stucky, 2006 U.S. Dist. LEXIS 29265, *7 (D. Kan. Mar. 13 Cal., Apr. 5, 2005)). When a party is found to have engaged in spoliation of evidence, cost-shifting 15 may be an appropriate sanction to the party to who spoliated evidence. See Genworth Fin. Wealth 16 Mgmt. v. McMullan, 267 F.R.D. 443, 449 (D. Conn. 2010) (allocating 80% of the cost of computer 17 mirror imaging to party who admitted to the court that he knowingly and intentionally spoliated 18 evidence). 19 20 expense' on the responding party." Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 316-17 21 (S.D.N.Y. 2003) (quoting Fed. R. Civ. P. 26(c)). The burden or expense of discovery is "undue" 22 when it "outweighs its likely benefit, considering the needs of the case, the amount in controversy, 23 the parties' resources, the importance of the issues at stake in the action, and the importance of the 24 discovery in resolving the issues." Fed. R. Civ. P. 26(b)(2)(C)(iii). Zubulake established a seven-25 factor test to neutrally evaluate whether cost-shifting is warranted: "(1) the extent to which the 26 request is specifically tailored to discover relevant information; (2) the availability of such 27 information from other sources; (3) the total cost of production, compared to the amount in 28 controversy; (4) the total cost of production, compared to the resources available to each party; (5)
The parties have offered to jointly establish a protocol for the forensic imaging, but have not 24, 2006) (citing Communications Center, Inc. v. Hewitt, 2005 U.S. Dist. LEXIS 10891, *3 (E.D. 14 Cost-shifting is also appropriate when the discovery sought "imposes an 'undue burden or the relative ability of each party to control costs and its incentive to do so; (6) the importance of the 2 issues at stake in the litigation; and (7) the relative benefits to the parties of obtaining the 3 information." Zubulake at 322; see also Hynix Semiconductor, Inc. v. Rambus, Inc., 2006 U.S. Dist. 4 LEXIS 98229, *32-34 (N.D. Cal. Mar. 2, 2006) (applying Zubulake's seven-factor test). Of these 5 factors, the first and second are weighed most heavily, the third through fifth weighed less heavily. 6
The sixth factor "rarely" comes into play, but has the potential to outweigh all other factors, and the 7 seventh is least important, though it can weigh against cost-shifting when the responding party 8 stands to gain a "tangible or strategic" benefit. Because the cost-shifting analysis is fact-intensive, it 9 may be necessary to order supplemental briefing and/or to require the responding party to restore 10 and produce responsive documents from a representative sample of the computers sought to be imaged. Zubulake at 324.
The DDJR presents several questions for this court's determination: (1) whether Lifetouch 14 may compel Creative to allow a forensic imaging specialist to analyze its computers; (2) if so, 15 whether Creative must supply all of its computers and all the data thereon, or some subset thereof; 16 and (3) if forensic imaging occurs, which party should bear the cost. Additionally, the parties 17 vigorously dispute whether or not Moss-Williams and/or Creative engaged in spoliation of evidence. 18
The court must therefore analyze whether cost-shifting is appropriate (1) as a sanction to defendants 19 for spoliation of evidence; (2) in light of an undue burden on defendants; (3) both; or (4) neither. 20
21 refrained from attaching documents that may help resolve this key factual issue. However, as in 22 Unlike in Zubulake, this court faces an additional hurdle: first determining whether evidence 24 spoliation occurred. Therefore, it is necessary to supplement the factual record before the court can 25 determine whether and to what extent forensic imaging is warranted, and whether and to what extent 26 cost-shifting is appropriate. 27
In compliance with this court's Standing Order re: Civil Discovery Disputes, the parties Zubulake, the cost-shifting analysis is a fact-intensive ...