Efrain AREIZAGA, Plaintiff, v. ADW CORPORATION, Defendant No. 3:14-cv-2899-B United States District Court, N.D. Texas, Dallas Division Signed August 01, 2016 Counsel Efrain Areizaga, Carrollton, TX, pro se. Norlynn B. Price, Barrett Thomas Robin, Danielle Alexis Matthews, John R. Herring, Jordan C. Campbell, Norton Rose Fulbright US LLP, Dallas, TX, for Defendant. Horan, David L., United States Magistrate Judge ORDER *1 Defendant ADW Corporation (“Defendant” or “ADW”) has filed a Motion for a Ruling on Discovery of Plaintiff's Electronically Stored Information. SeeDkt. No. 101 (the “Imaging Motion”). United States District Judge Jane J. Boyle has referred the Imaging Motion to the undersigned United States magistrate judge pursuant to 28 U.S.C. § 636(b) for determination. See Dkt. No. 102. In the Imaging Motion, Defendant asserts that the Court should grant ADW's request to secure a forensic image of Plaintiff Efrain Areizaga's personal computer, smart phone, or other electronic devices Plaintiff used to perform his job duties for ADW. Plaintiff Efrain Areizaga (“Areizaga” or “Plaintiff”) has responded to the Imaging Motion, see Dkt. No. 134, and ADW has addressed some of the substance of that response in a reply in support of another motion, see Dkt. No. 135. ADW asserts that “these electronic devices are at the very center of Plaintiff's allegations against ADW, and the artifacts and log files, among other electronically stored information, are directly relevant to the amount of time (if any) Plaintiff alleges he worked from a remote location—primarily his home.” Dkt. No. 101 at 2. ADW contends that, “[i]n order to investigate these allegations, ADW must be allowed to retrieve data from Plaintiff's electronic devices used for his work activities and analyze that data” and therefore “seeks the opportunity to evaluate work-related files on Plaintiff's home computer to determine when Plaintiff modified those files,” where “[t]his analysis may reveal the extent and nature of Plaintiff's computer activity or use of other work-related electronic devices on the days Plaintiff claims he worked overtime.” Dkt. No. 72 at 5. Plaintiff responds that he no longer has in his possession and control his previously owned personal laptop and smart phone that he used to communicate via a virtual private network (“VPN”) to his work computer at ADW from May 10, 2010 to August 1, 2013 and that the personal home desktop computer that he does have was only used as a form of communication via VPN and that all the work that he performed was at his work computer at ADW. Plaintiff also asserts that the data that ADW seeks is in its possession and control because his personal home computer was used solely to communicate with his work computer via VPN through encrypted communications. ADW responds that it does not only seek work-related files that Plaintiff created, modified, saved, or sent/received using his personal electronic devices. Additionally, ADW requires a forensic analysis of Plaintiff's personal electronic devices to determine the frequency and duration of Plaintiff's VPN access. The “log files” and “Windows event files” obtained from a forensic image of those devices will explain Plaintiff's usage history—not merely the work product Plaintiff created, modified, saved, or sent/received while using his personal electronic devices. For example, these files will evidence whether Plaintiff connected to ADW's system via VPN for five hours, but spent more than four hours browsing the internet. Similarly, these files will evidence whether Plaintiff printed a document at 10:00 p.m., but only required five minutes to do so. In such instances, although Plaintiff may testify that he remotely “worked” for many hours, a forensic analysis may reveal he did not work any overtime hours at all. *2 That type of activity can only be discovered through a forensic analysis of artifacts, Windows event files, and other automatically created files located on Plaintiff's laptop—these files are not located on ADW's computers or servers, and thus are not in ADW's possession. .... Remarkably, Areizaga admits in his Response that he has presumably destroyed or otherwise failed to maintain the personal electronic devices he used to allegedly work overtime hours. Plaintiff admits he no longer has “possession and control [his] personal laptop and smart phone that [he] used to communicate via virtual private network (VPN) to [his] work computer at ADW Corp....” Disposal of these devices directly violates the preservation notice that ADW sent to Areizaga's counsel when it learned of his alleged claims 4 and applicable law, including the Federal Rules of Civil Procedure. Therefore, in addition to the issues raised initially in ADW's Emergency Motion for Continuance, ADW now also must investigate why Plaintiff, despite his receipt of an explicit litigation hold notice, decided to destroy and/or dispose of his personal electronic devices containing potentially crucial evidence in this litigation. Dkt. No. 135 at 1-3 (emphasis removed). As a preliminary matter, the Court overrules Plaintiff's objection that this issue was never presented by way of a motion, since, whether that was true before or not, it has been now, and Plaintiff has been given the chance to respond. Plaintiff's other objections based on the Fourth Amendment are not well-taken. But the Court finds instructive another court's explanation of the proper analysis of a request like ADW's in its Imaging Motion: [A] request for an exhaustive forensic examination of [a party's] computers is within the scope of ESI discovery contemplated by Fed. R. Civ. P. 34(a)(1)(A). At the same time, however, such requests are also subject to the proportionality limitations applicable to all discovery under Rule [26(b)(1) ], including the prohibition of discovery that is unreasonably cumulative or duplicative or that could be obtained from some more convenient, less burdensome or less expensive source, or the benefit of which is outweighed by its burden or expense, when considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake and the importance of the proposed discovery to those issues. Certainly, the Official Advisory Committee Notes to the 2006 Amendments to Rule 34 relating to electronic discovery of the type sought by Haydel counsel caution: “As with any other form of discovery, issues of burden and intrusiveness raised by requests to test ... can be addressed under Rules 26(b)(2) and 26(c). Inspection or testing of certain types of electronically stored information or of a responding party's electronic information system may raise issues of confidentiality or privacy. The addition of testing and sampling to Rule 34(a) with regard to ... electronically stored information is not meant to create a routine right of direct access to a party's electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.” Advisory Committee Notes to 2006 Amendments, quoted in Federal Civil Judicial Procedure and Rules at p. 192 (Westlaw Pamph.2013 ed.). *3 Thus, while forensic computer examinations of the type sought by Haydel in this motion are “not uncommon in the course of civil discovery, ... ‘[c]ourts 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.’ ” John B. v. M.D. Goetz, Jr., 531 F.3d 448, 459–60 (6th Cir. 2008) (quoting Balboa Threadworks, Inc. v. Stucky, 2006 WL 763668, at *3 (D. Kan. Mar. 24, 2006) (citations omitted)). In addition, “mere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures.” John B., 53 F.3d at 460 (citing McCurdy Group, LLC v. Am. Biomedical Group, Inc., 9 Fed. Appx. 822, 831 (10th Cir. 2001)). “[A] mere desire to check that the opposition has been forthright in its discovery responses is not a good enough reason” for a court order compelling an exhaustive computer forensic examination. Memry Corp. v. Kentucky Oil Technology, N.V., 2007 WL 832937, at *3 (N.D. Cal. Mar, 19, 2007). Instead, courts have permitted restrained and orderly computer forensic examinations where the moving party has demonstrated that its opponent has defaulted in its discovery obligations by unwillingness or failure to produce relevant information by more conventional means. White v. Graceland College Center etc., 2009 WL 722056, at *7 and cases cited at n. 17 (D. Kan. Mar. 18, 2009). “Thus, ... compelled forensic imaging is not appropriate in all cases, and courts must consider the significant interests implicated by forensic imaging before ordering such procedures,” including that they must “account properly for the significant privacy and confidentiality concerns” of the parties. John B., 53 F.3d at 460. NOLA Spice Designs, LLC v. Haydel Enters., Inc., No. Civ. A. 12-2515, 2013 WL 3974535, at *2-*3 (E.D. La. Aug. 2, 2013) (alterations made to address recent revisions to Federal Rule of Civil Procedure 26(b)). As ordered by the Court after oral argument, see Dkt. Nos. 144 & 145, ADW has filed a supplemental briefing and evidence in support of its Imaging Motion, see Dkt. No. 151, and Plaintiff has filed a supplemental response as permitted, see Dkt. No. 152. “ADW requests permission to preserve a forensic image of Plaintiff's personal electronic devices, to the extent Plaintiff has not disposed of or destroyed them, in the event ADW must obtain a more complete understanding of Plaintiff's computer access or usage if same is necessary following analysis of Plaintiff's ADW workstation computer and other discovery, including Plaintiff's deposition.” Dkt. No. 151 at 1. ADW explains that, “[a]mong its other factual and legal defenses, ADW denies that Plaintiff worked overtime hours from his home”; that, “[i]f Plaintiff's statements and positions are accurate, an analysis of Plaintiff's workstation will verify ADW's defenses”; but that “Plaintiff's personal computers are nevertheless potentially relevant to Plaintiff's claims, and ADW's defenses.” Id. at 2. ADW asserts that, “[i]f necessary to provide a more complete analysis of Plaintiff's work hours, and to support ADW's other defenses, ADW should be permitted to analyze the unique Microsoft Windows artifacts contained on Plaintiff's personal computers.” Id. After carefully reviewing all of the parties' submissions in connection with the Imaging Motion, the Court finds that, on this record, ADW's request to obtain a forensic image of Plaintiff's personal electronic devices is too attenuated and is not proportional to the needs of the case at this time, when weighing ADW's explanation and showing as to the information that it believes might be obtainable and might be relevant against the significant privacy and confidentiality concerns implicated by ADW's request—even with ADW's offer to pay all expenses and to use a third-party vendor who will restrict ADW's access to the substantive information of any user-created files and particularly data that appears to be of a personal nature that may be included in the proposed forensic image. *4 For the reasons and to the extent explained above, the Court DENIES without prejudice Defendant ADW Corporation's Motion for a Ruling on Discovery of Plaintiff's Electronically Stored Information [Dkt. No. 101]. The parties bear their own expenses, including attorneys' fees, in connection with the Imaging Motion. SO ORDERED.