The Missouri federal court based in St. Louis has adopted a three-step procedure to conduct discovery involving ESI (“Electronically Stored Information”) especially in litigation involving trade secrets.
Generally, courts have been cautious in requiring the mirror imaging of computers where the request is extremely broad in nature and the connection between the computers and the claims in the lawsuit are unduly vague or unsubstantiated in nature. For example, a party may not inspect the physical hard drives of a computer merely because the party wants to search for additional documents responsive to the party’s document requests.
However, allegations that a defendant downloaded trade secrets onto a computer can provide a sufficient nexus between plaintiff’s claims and the need to obtain a mirror image of the computer’s hard drive. Finally, deleted computer files are discoverable.
The ESI Three-Step
In Step I, the parties select a forensic computer expert to inspect and copy defendants’ computer equipment so that the expert can create “mirror image” duplicates of the contents of those computers.
In Step II, the expert recovers from the duplicates all available ESI, including documents, email messages, files, records and other data that has been deleted, and provides this recovered ESI “in a reasonably convenient and searchable form to defendants’ counsel.”
Finally, in Step III, defendant’s counsel reviews the records for privilege and responsiveness and sends to plaintiff’s counsel all responsive and non-privileged documents and information, in addition to a privilege log.
Thereafter, once plaintiff propounds any further discovery requests, a defendant will search through the information provided by the expert to locate all responsive documents and data, and then produce to plaintiff all properly discoverable documents and data.