On May 17, 2018, United States District Judge Edward M. Chen of the Northern District of California ordered parties to meet and confer a second time on the basis that the parties had not adequately met and conferred the first time in an effort to resolve their discovery dispute.
The court observed that the plaintiffs had a duty to preserve information on electronic devices once they each reasonably anticipated the litigation, but such data on the electronic devices was continuously overwritten by routine use. The plaintiffs indicated that they did not want to disrupt their businesses by not using those electronic devices. In an effort to accommodate the plaintiffs’ concern, the defendants had moved to image the plaintiffs’ devices. The court had granted the defendants’ motion in part, allowing forensic imaging of a sampling of those devices “at no monetary cost to [p]laintiffs.” Further, the court had ordered the parties to meet and confer regarding preservation of data on some of the plaintiff’s electronic devices by imaging, and to report back on the results of that conference by May 15, 2018.
A day before that deadline, the plaintiffs filed a letter objecting to the proposed imaging, arguing among other things that they would be deprived of the ability to use their devices while they were being imaged. A day after the court’s May 15 deadline, the defendants filed a letter asking for more time to respond to the plaintiffs’ letter, stating that a “full and complete” meet and confer had not taken place.
The court found that the ordered meet and confer had not adequately taken place, and ordered the parties to further meet and confer before filing a joint letter reporting back on the result. The court suggested that the plaintiffs’ expert do the imaging, as long as that expert’s fee was reasonable.
"If there were any remaining discovery disputes after the second meet and confer, then the parties were to state in a joint letter “what each dispute is, the last offer of compromise made by each party regarding that dispute, and what each party’s position is on the dispute.” The court indicated that any party taking an “unreasonable or unwarranted” position would risk sanction."
The court ordered that the parties file the joint letter by May 24, 2018. If there were any remaining discovery disputes at that time, then the parties were to state in the joint letter “what each dispute is, the last offer of compromise made by each party regarding that dispute, and what each party’s position is on the dispute.” The court indicated that any party taking an “unreasonable or unwarranted” position would risk sanction.
On May 24, 2018, the parties filed the joint letter outlining their agreement to forensically mirror up to seven of the plaintiffs’ devices by the plaintiffs’ expert. No disputes were indicated.
The case is John Finkelstein, et al. v. San Mateo County District Attorney’s Office, et al., Case No. 18-cv-00009-EMC (N.D. Cali. May 17, 2018). A copy of the opinion can be found here.
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