In Azenta, Inc. v. Andrews, No.: 22-cv-01952-JLS-JLB (S.D. Cal. Dec. 21, 2023), California Magistrate Judge Jill L. Burkhardt granted in part and denied in part the plaintiff’s motions, denying plaintiff’s request for a comprehensive forensic examination by a third-party expert, finding that “the burden of the additional costs to Andrews under Plaintiff’s protocol and the time both parties’ experts and counsel would expend substantially outweigh the benefit Plaintiff would likely receive”. However, she did order defendant Andrews and her counsel to “submit to Plaintiff a declaration(s) that lists all devices and accounts on which Plaintiff’s information may have been stored, accessed, deleted, or transferred.”

Case Background

This case involved allegations of misappropriation of trade secrets by a former employee of the plaintiff, who “downloaded and sent Plaintiff’s proprietary customer and billing information from her work email address to her personal email address at least five times” and failed to return her primary company laptop.

Defendants’ counsel engaged Epiq to obtain and analyze forensic images of several data devices of the defendant. Plaintiff had requested that Defendants allow “a neutral third party to monitor [Epiq’s] investigation” in order to “determine whether or not the search was full and complete”, but defendants refused. Epiq conducted a forensic analysis to determine if Andrews had downloaded, accessed, emailed or otherwise distributed a specific billings Excel spreadsheet, but found no evidence to indicate that it had. Epiq also “attempted to determine if the file or contents of the file were used within the LVL laptop or if the file … had perhaps been renamed so as to hide it from discovery.”

Afterward, Plaintiff filed a motion to compel a forensic examination of Defendants’ devices and systems, seeking to “ensure that the search for Azenta Information is complete” by hiring “a neutral forensic expert, Dr. Shane Shook” to “oversee[ ]” Epiq’s work. Defendants would be required to list all Devices and Accounts on which Azenta Information may have been stored, accessed, deleted, or transferred. Epiq would then identify which of the listed devices it previously had examined, and Epiq and Dr. Shook would collaborate to image, analyze and report on any devices or accounts not previously examined. The report and ESI identified in the report would then be provided to Defendants’ to be reviewed for privileged and “purely private information”, then Defendants would produce to Plaintiff the report and ESI identified in the report, minus anything appropriately withheld, and Epiq would remove any of Plaintiff’s information from the examined devices and accounts prior to returning them to Andrews.

Andrews argued there was “no legitimate reason to allow Azenta or anyone acting on behalf of Azenta to have access to Andrews’ personal electronic accounts and devices” considering that “a forensic examination of the relevant devices and accounts already has been performed.” Andrews instead suggested that Plaintiff should depose the forensic examiner, Ashraf Massoud, regarding his findings, and Andrews.

Judge’s Ruling

Regarding the relevancy of the proposed forensic examination, Judge Burkhardt stated: “the Court finds generally that devices and systems used to ‘access, store, transfer, copy, download, upload, or delete Plaintiff’s documents or information’ would be relevant to Plaintiff’s trade secret misappropriation claim”, only excluding Andrews’ son and husband from the search term list (which the plaintiff acknowledged wouldn’t have been included as search terms had they known who they were).

Regarding the burden vs. the benefit of the proposed forensic examination, Judge Burkhardt stated: “although the instant motions state that Plaintiff would bear the cost…, this is an oversimplification and disregards the additional expense Andrews will face”, noting that such an examination would result in additional time to be spent by Epiq in consultation with Plaintiff’s proposed expert, as well as “the additional expense of Andrews’ counsel’s time in conducting a review of the second forensic report and all ESI identified by the report for privilege and purely personal information prior to their production to Plaintiff.”

As a result, Judge Burkhardt denied plaintiff’s request for a comprehensive forensic examination by a third-party expert, stating: “the Court finds that the burden of the additional costs to Andrews under Plaintiff’s protocol and the time both parties’ experts and counsel would expend substantially outweigh the benefit Plaintiff would likely receive, particularly considering Plaintiff has other less burdensome methods available to it for discovering the relevant information, such as deposing Andrews and Massoud. However, the Court agrees that Plaintiff is entitled to know which devices and accounts are responsive to RFP No. 1 and which of those devices and accounts were subject to the examination by Epiq.” She also noted: “If Plaintiff discovers additional or new evidence supporting its need for a second or supplemental forensic examination, Plaintiff may re-raise the issue with the Court pursuant to Section V of the undersigned’s Civil Chambers Rules.”

So, what do you think? Are you surprised that the Court denied plaintiff’s request for a comprehensive forensic examination by a third-party expert? Please share any comments you might have or if you’d like to know more about a particular topic.

Happy Valentine’s Day to my wonderful wife, Paige! I love you honey!

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