In Popat v. Levy, et al., No. 15-CV-1052W(Sr) (W.D.N.Y. Nov. 5, 2021), New York Magistrate Judge Harold K. Schroeder Jr., in response to the defendants’ motion to compel the plaintiff to produce a flash drive containing three documents that were produced just before the plaintiff’s deposition, ordered the parties to “jointly compensate a neutral forensic expert to extract targeted image files of the three documents, with metadata, from the flash drive/storage device” because of the plaintiff’s initial inadvertent withholding of documents.
In this employment discrimination case, in February 2021, the day before the plaintiff’s scheduled deposition, the plaintiff produced a PDF file containing 19 pages of personal notes from three files. At his deposition, which was conducted in March 2021, the plaintiff testified that he referred to these documents during his interview and meeting with the Director of the Office of Equity, Diversity and Inclusion at SUNY Buffalo, who was investigating his complaints, but was never asked to disclose them. He also testified that he had backed up the documents on a flash drive before his personal laptop ceased to operate and that he made no alterations to the documents since he drafted them. The plaintiff referred to these documents during his deposition testimony.
After the defendants served a request for production on the plaintiff for the flash drive and the plaintiff objected, the defendants filed a motion to compel the plaintiff to produce the flash drive/storage device for inspection by defendants’ forensic computer analyst. The defendants argued that because of the plaintiff’s initial withholding of documents in response to defendants’ discovery demands, they were entitled to verify that the documents were created contemporaneously with events that occurred in 2014 and were not supplemented or altered prior to their disclosure in 2021.
The plaintiff didn’t object to defendants’ request for the metadata but argued that production of copies of the digital files with the metadata preserved was sufficient and that a forensic analysis of the flash drive/storage device (which contained thousands of personal and private documents, including attorney work product and attorney/client communications privileged documents) was disproportionately intrusive.
Judge Schroeder, after considering all the arguments, stated: “While there is no reason to believe that plaintiff has tampered with the documents at issue in this matter, the inadvertent withholding of documents from plaintiff’s initial disclosure warrants confirmation of the date they were last modified so as to dispel future arguments over their evidentiary value. To address plaintiff’s privacy concerns, the parties shall jointly compensate a neutral forensic expert to extract targeted image files of the three documents, with metadata, from the flash drive/storage device. The neutral forensic expert shall also be permitted to inspect the Fujitsu Lifebook T Series for the three documents and, if any of those documents are stored on the Fujitsu Lifebook T Series, the neutral forensic expert may extract targeted image files of any of those documents from that device. If the extraction from the flash drive/storage device and the Fujisu Lifebook T Series is inconclusive as to the creation, modification and transfer of the three documents to the flash drive/storage device, defendants may ask the neutral forensic expert, at defendants’ expense, to inspect the HP Pavilion HP Pavilion dv6000 to ascertain whether it is possible to extract targeted image files, with metadata, for the three files at issue from that device.”
So, what do you think? Was the plaintiff’s initial withholding of documents enough reason for the Court to have granted the forensic inspection? Please share any comments you might have or if you’d like to know more about a particular topic.
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