In Fasteners For Retail, Inc. v. DeJohn, the parties had a business dispute (causes of action included breach of confidentiality and unfair competition), and soon the eDiscovery gridlock began. Plaintiffs (FFR) sought ”any relevant computer hard drives and electronic media”, defendants objected, the court ordered production “for attorney’s eyes only”, and, by the sounds of things, there wasn’t much movement forward. FFR filed more than one motion to compel and for sanctions:

On July 12, 2013, FFR filed a motion to compel defendants to comply with discovery and for production of their computer hard drives. FFR asserted that defendants have “engaged in knowingly evasive and even perjured testimony, and potentially even the spoliation of critical evidence.” In support of this motion, FFR asserted that there are “mounting signs” that “[d]efendants purposely destroyed relevant electronic information.” FFR asserted that DeJohn stated that he experienced computer problems that prevented him from retrieving all of his emails, and that [co-defendant] Kump had the hard drive on one of his computers replaced one day before this matter was filed. FFR also asserted that DeJohn wrote “Hello men” on a number of emails with two recipients who are employees of FFR, but “FFR has received more of the chain,” thus suggesting that a larger email chain existed.

The trial court ended up ordering defendants to produce all the sought hard drives for forensic review, and last month their appeal was considered. The appeals court noted that a balancing test was required, to “weigh the parties’ interests in obtaining the discovery against privacy concerns”, and that any forensic imaging could not be unduly intrusive. To the first point, the court uses the Bennett test:

[B]efore compelling forensic imaging, a court must weigh “the significant privacy and confidentiality concerns” inherent in imaging against the utility or necessity of the imaging. * * * In determining whether the particular circumstances justify forensic imaging, a court must consider whether the responding party has withheld requested information, whether the responding party is unable or unwilling to search for the requested information, and the extent to which the responding party has complied with discovery requests. * * * When a requesting party demonstrates either discrepancies in a response to a discovery request or the responding party’s failure to produce requested information, the scales tip in favor of compelling forensic imaging.

In other words, Bennett requires that there be demonstrable noncompliance from a responding party before forensic imaging can be ordered, and the instant court finds that no such noncompliance took place in this case. “The record does not demonstrate that the documents FFR sought were being unlawfully withheld and not available from FFR’s own information or other sources.” Similarly, a protective protocol, to ensure that the forensic search is not unduly intrusive, was found to be lacking in this case.

Ultimately, the court reserved and remanded the order to compel.