Courts have continued to impose orders requiring a neutral forensic examination of computers, particularly in cases involving the misappropriation of proprietary source code. In Brocade Commc’ns Sys. Inc. v. A10 Networks Inc., No. 5:1—cv-03482- LHK, (N.D. Cal. Jan. 9, 2012), an action for misappropriate of trade secrets, Judge Lucy H. Koh granted the plaintiff’s motion to compel a forensic examination of certain computer hard drives in the possession of the defendant. Judge Koh noted that although Rule 34 of the Federal Rule of Civil Procedure “is not meant to create a routine right of direct access to a party’s electronic information system,” but that “such access might be justified in some circumstances.” She also noted that even when the information requested is not reasonably accessible, the “court may nonetheless order discovery from such sources if the requesting party shows good cause[.]”

Judge Koh noted that the defendant’s 30(b)(6) witness admitted that 196 of the plaintiff’s source code files had been on the computer that had been taken by a departing employee and used while he was working for defendant, despite the individual’s claims to the contrary. In addition, the defendant admitted that the same individual’s computer had been imaged in 2010 and later “recycled”, and the same source code files were later transferred from the imaged hard drive to another computer used by the same individual.

Judge Koh held that the plaintiff had “shown that the forensic imaging and analysis of the deleted files is at least relevant to [the plaintiff’s] trade secret misappropriation and copyright claims, and to testing the veracity of [the defendant’s] claims that any of [the plaintiff’s] source code files” were accessed while the defendant was developing its own software. She also noted that it was unlikely that the plaintiff would be able to obtain this relevant information from other sources, and that the plaintiff’s “need for the discovery outweighs [the defendant’s] inability or unwillingness to provide this information.”

As the plaintiff was “not entitled to set the conditions of the inspection unilaterally nor to select the person who will perform it,” Judge Koh required the parties to meet and confer in order to agree on a protocol for the “imaging, analysis and subsequent production of responsive documents.”