Court Rules That Forensic Image of Thumb Drives Must Be Produced Even Where Requesting Party Originally Demanded Inspection of the Thumb Drives

Patrick Burke On January 20, 2011 Senior US District Court Judge William M. Nickerson granted a motion to compel production of the forensic image of 15 thumb drives in Océ North America, Inc. v. MCS Services, Inc., 2011 WL 197976 (D.Md.).

The dispute arose because plaintiff Océ North America – whose lawsuit alleges that defendant MCS Services, Inc. used its proprietary software without permission – had originally served a Notice of Inspection of, among other things, thumb drives containing relevant electronically stored information (ESI). By stipulation between the parties, the 15 thumb drives were imaged by a neutral forensics expert and the original thumb drives were then destroyed by the expert. MCS then refused to authorize the expert to produce the forensic images of the thumb drives arguing, among other things, that because Océ’s request came in the form of a Notice of Inspection of the physical thumb drives – which no longer existed -- it did not apply to the forensic image of the ESI on the thumb drives.

The Court rejected defendant’s argument that a notice of inspection of the thumb drives substantively differed from a request for the ESI contained on the thumb drives:
Parties have a continuing obligation to supplement their responses to discovery requests. Fed.R.Civ.P. 26(e). Océ's Notice requested the thumb drives and other like devices. As forensic images of the thumb drives, the Capsicum-created copies contain the exact same information the drives contained. The images are responsive to Océ's Notice and within MCS's control because MCS has the authority to release the images to Océ. Océ is thus entitled to receive the images.
MCS's argument also fails for practical reasons. Oftentimes, the nature of discovery of electronically stored information (ESI) is such that the producing party first creates forensic images of potentially responsive material, then reviews the electronic files on those images for relevancy and privilege before producing a filtered trove of responsive files. In such cases, the producing party produces identical copies of the files, but not necessarily the original files themselves. Similarly, a party may print hardcopies of electronic files or create facsimiles of responsive documents. None of these reproductions technically exist at the outset of litigation, but they must be produced and are sufficient to satisfy a producing party's obligations pursuant to a document request.
The instant scenario is not substantially different. When Océ requested the thumb drives, it sought not the physical device but rather the ESI contained therein. As a matter of practical concern, therefore, if the original thumb drives were discoverable, Capsicum's forensic images of the thumb drives must also be discoverable, and Océ need not propound a new discovery request for what amounts to the exact same information.
The Court therefore granted plaintiff’s motion to compel production of the forensic image of the thumb drive.

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