When the plaintiff obtained images of the defendant's computer hard drives through an Anton Piller order, they, rather than the defendants, were obliged to review the images and include the relevant documents in their affidavit of documents.

The original action had the plaintiff claiming the defendant was trafficking in devices to unlawfully receive satellite television programming signals. When spoliation was anticipated, the court issued an injunction and granted the plaintiff an Anton Piller order. During the execution of the Anton Piller order, a computer forensics company imaged the defendant's computer hard drives and provided full access to the plaintiff. The defendant produced two affidavits of documents during discovery, both of which the plaintiff contended were deficient. To prove that the defendant had not properly searched their original hard drives before producing their affidavit of documents, the plaintiff introduced evidence from the imaged drives and brought this motion to compel production.

Pursuant to Rule 30.03(2) of the Rules of Civil Procedure, a party’s affidavit of documents shall list and describe all relevant documents that are in the party’s possession, control or power. However, in this case, the plaintiff also had full and unrestricted access to the documents via the imaged hard drive. Therefore, the judge considered the documents to also be “within the power, if not also the possession and control” of the plaintiff. Additionally, the defendant did not claim privilege and had no objections to the production of any of the documents on the hard drive.

The judge, therefore, found that the plaintiff could properly prepare for discovery. And, pursuant to Rule 30.03(2), the Court decided that the plaintiff is obliged to review the documents on the imaged hard drives when preparing its affidavit of documents and dismissed the plaintiff's motion for an order compelling the defendant to produce additional documents. Since the plaintiff had full access to the hard drives, the judge decided they should be the ones to review them.