Employee Moved to Compel Discovery and Appointment of Neutral Computer Forensics Expert
Williams v. Mass. Mutual Life Insurance Company, 226 F.R.D. 144 (D. Mass. 2005)
MassMutual employee filed employment discrimination suit against employer. Employee moved to compel discovery and appointment of neutral expert in computer forensics.
Employee plaintiff was seeking a particular email that he claimed to have seen and possessed at one point, but now claimed was not in his possession. Plaintiff, who is African-American, was referring to a hard copy of an October 24, 2002 email message sent by either the Senior Vice President, Nancy Roberts, or Stephanie Allsup to Robert O'Connell, MassMutual's Chief Executive Officer. That email message, "spelled out" a policy or practice by MassMutual of using disciplinary actions as a pretext for terminating minority employees. Plaintiff sought an order appointing a neutral computer forensics expert to search for the email, and once the email was discovered, to further investigate the location of all electronic communications related to his employment and termination that have not as yet been produced by defendants. He also sought an order requiring defendants to "'preserve all documents and information, whether in electronic or paper form, to suspend all recycling of any backup tapes, any automated deletion of email, the reformatting of hard drives, and/or that an appropriate medium for retention of this type of data be disclosed and utilized.'" Defendants claimed the plaintiff’s motion was based on "'flimsy and implausible assertions'" and that their own forensic analysis did not identify any email message resembling the one the plaintiff alleged he had once seen and possessed.
The court noted that plaintiff sought "significant relief -- the search of Defendants' information systems -- based not only on uncorroborated evidence but, curiously, on a document which Plaintiff himself claims to have had in his possession but which he can no longer locate." The court refused the plaintiff’s request to appoint a neutral expert in computer forensics so that he can “confirm what is highly speculative conjecture that the October 24, 2002 email message, which he claims exists, is something other than the October 24, 2002 memorandum which Defendants have produced." The court concluded that the plaintiff had no credible evidence that defendants had withheld relevant information. The court also did not allow plaintiff to conduct a forensic search at his own expense because he did not “present at least some reliable information that the opposing party's representations are misleading or substantively inaccurate."
However, the court ordered defendants "to preserve all documents, hard drives and email boxes which were searched by their forensic expert in response to Plaintiff's motion." In the court's estimation, this order was not unduly burdensome and was necessary to preserve plaintiff's appellate rights.
