While continuing the “power shuffle” in Houston, Shark Week, er, eDiscovery Case Week, continues! In Citizens Bus. Bank v. Mission Bank, No. 5:22-cv-01473-FLA (SPx) (C.D. Cal. Mar. 15, 2024), California Magistrate Judge Sheri Pym, while ruling that the plaintiff’s request for a forensic examination of defendant’s chief banking officer’s devices was ripe, found there was no good cause for ordering a forensic examination.

Case Background

In this case involving claims of misappropriation of trade secrets, intentional interference with contractual relations and other things related to the plaintiff’s purchase of Suncrest Bank, defendant collected documents in response to plaintiff discovery requests from 15 of its employees, including one of the Suncrest employees it hired (Dustin Della, with whom plaintiff alleged defendant conspired to steal plaintiff’s trade secrets) and Bryan Easterly, defendant’s chief banking officer.

Subsequent third-party subpoenas of those same employees identified additional documents not produced, including e-mails Della sent to Easterly from his personal e-mail address. After meeting and conferring, defendant indicated that it was in the process of reviewing and producing additional documents and its investigation revealed there were approximately 20 emails between Della and Easterly that Easterly deleted pursuant to his standard personal e-mail practices and prior to defendant receiving plaintiff’s demand letter and the filing of the Complaint. Plaintiff requested a forensic inspection of Easterly’s computer, about which the parties also met and conferred, but were unable to reach an agreement.

Subsequently, defendant’s counsel informed plaintiff that it used the Spanning platform to preserve and backup data. Defendant stated it would export Easterly’s data from the Spanning platform to determine what documents were not collected and reviewed, run the search on those documents, and produce all responsive documents not already produced. Ultimately, plaintiff represented defendant made an additional production of approximately 20,000 documents, which included e-mails between Della and Easterly. Defendant stated the number of documents was high because plaintiff added more customer names to the search parameters.

As for the request for a forensic inspection, Defendant contended the motion was not ripe because: (1) plaintiff did not serve a Rule 34 request for a forensic examination; and (2) defendant’s responses to plaintiff’s latest round of discovery requests, which includes the production of certain devices for inspection, were not due until March 13, 2024, after the motion was heard.

Judge’s Ruling

In considering the request for forensic inspection, Judge Pym stated: “Defendant correctly notes that plaintiff did not serve it with a request to inspect Easterly’s devices. Nevertheless, a party may also move to compel a forensic examination as a remedy without serving a standalone discovery request when such request is to remedy or sanction a failure to comply with discovery obligations… Here, after multiple meet and confer sessions and ongoing exchanges about…Easterly’s e-mails, plaintiff seeks a forensic examination of Easterly’s devices because of defendant’s initial failure to produce all responsive documents, Easterly’s deletion of e-mails, alleged misconduct, and alleged inadequate inspection of Easterly’s devices. As such, plaintiff’s request for a forensic examination of Easterly’s devices is ripe.”

However, she also stated: “By contrast, plaintiff’s request to compel a forensic inspection of other devices and the backup platform is not ripe. Although defendant similarly failed to produce all responsive documents from the other custodians in its initial production, it has subsequently conducted additional searches and made supplemental productions. Plaintiff has not raised the same concerns over defendant’s production of documents from its other custodians. Nor have the sides met and conferred on plaintiff’s request for a forensic examination of defendant’s other custodians.”

Not only that, but when it came to considering potential prejudice, Judge Pym stated: “Plaintiff fails to make a showing that any evidence was destroyed or missing. Plaintiff’s argument rests on defendant’s incomplete initial production, Easterly’s deletion of responsive e-mails, and Easterly’s general practice of deleting e-mails…In the January 5 Letter, plaintiff identified 23 emails that were produced by Della in response to the third-party subpoena but not by defendant…Nineteen of those e-mails were from Della to Easterly…After some investigation, defendant informed plaintiff that some of those documents had indeed been produced,…and Easterly, in accordance with his personal e-mail practices, had deleted approximately 20 e-mails before the filing of the Complaint or the March 22, 2022 demand letter…Defendant subsequently produced the emails identified in the January 5 Letter to plaintiff… Thus, the documents identified by plaintiff in this motion were not destroyed. Plaintiff has not identified documents that were destroyed and merely speculates Easterly deleted relevant other e-mails and these emails were not preserved in other custodians’ e-mails and produced. Mere speculation of destroyed documents is an insufficient basis to grant a motion to compel a forensic examination.”

Concluding, Judge Pym stated, in finding no good cause for ordering a forensic examination: “In light of defendant’s continuous cooperation with plaintiff and investigation into the backup platform, however, the court does not find defendant’s actions constitute misconduct warranting a forensic examination.”

So, what do you think? Do you agree with the Court that there was no good cause for ordering a forensic examination? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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