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Must Produce Deleted Documents

In Benton v. Dlorah, Inc., 2007 U.S. Dist. D. Kan, Oct. 30, 2007, plaintiff informed defendant at her deposition that she had deleted e-mails; defendant filed a motion to compel production of relevant documents as well as plaintiff’s hard drive. Defendant also moved for sanctions due to spoliation of evidence.

Initially the court ruled that the requesting party (defendant) had not adequately refuted the plaintiff’s assertion that she had produced all relevant documents; the court nonetheless allowed the requestor to seek further discovery if it could be shown later that the plaintiff had actually spoilated evidence Id. at *3-*4.

On their subsequent motion to compel, requestors asserted that producer had admitted failing to produce a relevant e-mail as well as having used her personal account instead of her work e-mail and deleting “hundreds” of possibly relevant messages from that as well. Producer responded that requestor’s request was not sufficiently tailored, that her personal computer contained personal and privileged information, and that the request constituted a fishing expedition, not outweighing the harm to her.

The court ruled that producer must produce the relevant e-mails, which were responsive to requestor’s request.

Deleting these e-mails, even if done in good faith and at a time before Plaintiff contemplated her legal action, does not necessarily remove the e-mails from her possession, custody or control. Deleted documents should be retrievable from her computer system and thus remain within in her control.

Id. at *7. The court ordered that if she could not produce the e-mails, she shall produce for inspection her computer hard drive from which the deleted e-mails were sent. This will allow Defendants to use the services of a computer forensic specialist, if necessary, to retrieve them. Inspection of the drive would be limited to the subject of requestor’s request. Id.

The court made no reference to any distinction between accessible and inaccessible data. In effect, deleted e-mails may now have moved into the realm of “accessible” data.

Conclusion: It is critical that litigators stay alert to the fact that vital electronically stored information (ESI) is discoverable and that the courts will consider reasonable production requests when the facts are clearly presented. In this case, the producers use of her personal e-mail account to conduct business related communications would have remained unidentified had it not been for the pressing inquiry into the producers computer habits in her deposition.

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