Momentive Specialty Chemicals, Inc. v. Alexander

Filing 30

ORDER granting 25 Motion to Compel permitting forensic examination of defendant's computer hard drive and establishing protocols for production of documents. Signed by Magistrate Judge Terence P Kemp on 5/16/13. (Kemp, Terence)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Momentive Specialty Chemicals, :
Inc.,
Plaintiff,
v.

:
:

Case No. 2:13-cv-275

:

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

Ricky Alexander,
Defendant.

:
ORDER

This case is currently before the Court to decide plaintiff
Momentive Specialty Chemicals, Inc.’s motion to compel production
of Defendant Alexander’s computer (Doc. 25).

The matter has been

fully briefed and the parties have requested an expedited
decision based on the fact that the case is (according to the
parties) set for trial during the week of June 20, 2013.

This

order constitutes the Court’s ruling on the motion.
Due to the expedited nature of the briefing and ruling, the
Court will set forth only a brief background of the case and the
motion.

The case itself involves Momentive’s claim that

defendant Ricky Alexander, who used to work for Momentive, has
gone to work for a competitor, breached a non-compete agreement,
and taken proprietary information with him to use in competing
against Momentive.

It turns out that Mr. Alexander had either

one or two flash drives he used while at Momentive and that one
or both of them may have contained sensitive information such as
customer lists.

Momentive wants to find out if Mr. Alexander

accessed those flash drives (one of which, according to Mr.
Alexander, he left in his office the day he left Momentive) since
he has been working for his new employers.

As part of its

investigation into this subject, Momentive asked Mr. Alexander if

he would allow an image to made of his current laptop computer
and if Momentive could search it.
According to the parties, Mr. Alexander agreed to some type
of forensic examination of that computer.

They disagree,

however, over the exact terms of that agreement.

Their

disagreement is evidenced by the competing protocols they
proposed for the examination.

A copy of each of those protocols

is attached to Momentive’s motion.
Under Momentive’s approach, after an expert prepares an
exact image of the computer’s hard drive, Interhack Corporation
will search the imaged drive for “information relevant to this
case.”

That will be done through “conceptual keyword search and

analysis” using certain search terms listed in Exhibit B to
Momentive’s proposed protocol.

49 search terms are listed.

Once

responsive documents are identified, they will be given to
counsel for both parties simultaneously.

All such documents will

be designated as “confidential” under an existing protective
order.

If any communications between Mr. Alexander and his

litigation attorneys are found, they will be given to his counsel
for privilege review, which must be completed within three
business days.
Mr. Alexander’s proposed protocol is quite different.

He

envisions that the first task performed after the image is made
will be to determine if either of the flash drives was ever
connected to or accessed by his laptop.
would be at an end.

If not, the examination

Otherwise, the examination would proceed,

but would be limited to a search for documents which might have
been on either of the flash drives.

If that search occurs, the

examiner would eliminate and not produce copies of any privileged
documents.

Anything left would be given to both counsel and

marked “attorney eyes only” under the protective order.
Despite suggestions in Momentive’s memoranda that this
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matter can be resolved based on the parties’ prior agreement, the
Court does not find that basis sufficient.

The agreement is not

in writing and the parties differ on its scope, with some of
those differences being supported by sworn statements of counsel.
Without an evidentiary hearing, it would be difficult if not
impossible to determine exactly what the parties agreed to.
However, the motion can be resolved without reference to any
prior agreement, based upon the general principles applicable to
discovery.

It can also be resolved without the need to take

sides in the argument about whether Mr. Alexander has proved
himself an untrustworthy witness or party, something which
Momentive argues strenuously and which Mr. Alexander just as
strenuously denies.
The concept driving the parties’ disagreement appears to be
this: Momentive thinks it has asked Mr. Alexander to produce all
relevant documents which are on his laptop’s hard drive, and Mr.
Alexander thinks Momentive has only asked to look at the hard
drive in order to see if he accessed the flash drives in question
after denying doing so.

He apparently does not deny that there

are other relevant documents on his hard drive that could be
asked for properly as part of discovery.

He also has not argued

that the search terms proposed by Momentive would not be an
appropriate way to search for relevant documents.

He just

disagrees that locating and producing all relevant documents is
the point of the hard drive imaging and searching process.
As noted, whether searching for evidence of use of the flash
drives was Momentive’s original reason for asking for an image of
the hard drive is hard to determine.

Given the situation the

parties are now in, however, with trial looming, the need to take
Mr. Alexander’s deposition, and the need to complete the search
of the hard drive before that occurs, there is nothing either
unusual or improper in what Momentive is currently proposing,
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which is to have Mr. Alexander produce all of the relevant
documents in his possession.

And if Momentive had not made that

specific request before, it clearly has done so in its proposed
search protocol.

There can be no legitimate argument that

Momentive is not entitled to copies of relevant documents
wherever they may be found, including on the hard drive in
question.

So both reasons advanced by Momentive for the imaging

and search are appropriate and permissible, and timing concerns
mandate that both be accomplished as quickly as possible.
Although both types of searches fall well within the scope
of allowable discovery, the protocols for each should not
necessarily be the same.

The Court agrees that an imaging and

forensic search is needed in order for Momentive to determine if
Mr. Alexander’s computer accessed the flash drives.

It would

appear that Sections 5(a) through (h) of Momentive’s protocol are
specifically designed for this purpose, and that having
Momentive’s expert share this information only with Momentive is
appropriate.

Also, if actual files from the flash drives are

determined (in some way that is better left to experts) to be on
the hard drive, those should be produced directly to Momentive
(although copies should be provided to Mr. Alexander’s counsel at
the same time).

No privilege or relevance review of those

documents would appear to be needed.
Other relevant documents which were not taken from the two
flash drives should be treated differently, however.

It would

seem that there is no reason for their production to proceed
differently from any other production of documents gathered from
a key word search of ESI.

That is, Mr. Alexander is the one who

would appear to have the initial responsibility of reviewing the
documents which are “hit” by the search terms in order to weed
out any privileged communications, for which he would create a
privilege log.

It also makes some sense to permit him to review
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the documents to eliminate any that are simply irrelevant and
non-responsive to any legitimate discovery request (i.e.
documents which are not relevant to any party’s claims or
defenses or which are not reasonably calculated to lead to the
discovery of relevant evidence).

The remainder should then be

produced and, if appropriate, designated with some level of
protection as permitted by the existing protective order.
The question always comes up, however, about how much of
that winnowing process to entrust to the party producing the
documents rather than the party asking for them.

Momentive,

claiming to be distrustful of Mr. Alexander, wants all of the
documents “hit” by the search terms to be produced to its counsel
regardless of whether they turn out to be discoverable.

At this

stage of the case, the Court does not believe that is necessary,
and it is a departure from the usual way in which documents are
produced.

However, the Court will direct counsel for Mr.

Alexander to log any documents withheld on relevance grounds so
that the parties can have a reasoned discussion about whether
that withholding was appropriate.

If disputes about that subject

arise, the Court strongly recommends that copies of any documents
in dispute be made available to Momentive’s counsel with the
understanding that only they may review them, and if a
disagreement remains, the parties will seek the Court’s guidance
about whether the documents have to be formally produced or
returned to Mr. Alexander.
This leaves only the question of timing.

The parties seem

prepared to have the forensic work done promptly, so the Court
need not intervene in that part of the process.

The Court

hesitates to guess at the amount of time Mr. Alexander’s counsel
will need to complete a privilege and relevance review of the
documents, because it will depend in large part on how many
documents responsive to the search terms are retrieved.
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Assuming, however, that because only a few months have gone by
since Mr. Alexander left Momentive, the volume of documents will
not be overwhelming, the Court sets a turnaround time of five
business days from counsel’s receipt of the documents.

That

should permit all of this activity to take place in time for Mr.
Alexander to be deposed before trial.
Based on the foregoing, the motion to compel (Doc. 25) is
granted as outlined above.

The parties shall request an

immediate conference with the Court should they encounter
difficulties in implementing the Court’s resolution of the issues
raised by the motion.

/s/ Terence P. Kemp
United States Magistrate Judge

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