The Smoking Gun in Your Adversary's Hard Drive
"If we value the pursuit of knowledge, we must be free to follow wherever that search may lead us." -- Adlai E. Stevenson Jr. (American politician, 1900-1965).
Since the e-discovery related amendments to the Federal Rules of Civil Procedure in December 2006, it has become increasingly common for litigants to seek complete copies, or images, of computer hard drives from their adversaries. Not all appreciate, however, that such requests are not likely to be supported by the court in the absence of special circumstances that justify such an invasive and often overreaching demand.
This article will discuss how the rules and court decisions have addressed the propriety and parameters of hard drive image requests.
Pursuant to Federal Rule of Civil Procedure 34, a party may certainly request copies of electronically stored information maintained by an adversary. In particular, Rule 34 permits a party "to inspect, copy, test, or sample any designated documents or electronically stored information." While there is no doubt as to a party's right to request duplication of relevant electronic data, requests calling for complete copies of a party's computer hard drives for searching and production of select ESI are often met with resistance."