In the latest of several Peskoff v. Faber decisions (No. 04-526, 2008 WL 269506 (D.D.C. 2008)), Magistrate Judge John Facciola ordered the responding party to pay the cost of a forensic examination to recover electronically stored information ("ESI").  Judge Facciola previously addressed the sufficiency of a search done by the responding party for emails and other ESI in response to discovery requests, determining that it was appropriate to ascertain the costs of forensic testing of the computers and server at issue to see if a forensic search was justified.  After the discovery was deemed appropriate, bids were obtained reflecting the costs of the forensic search.  The parties could not agree on who would absorb the costs, so Judge  Facciola stepped in to resolve which party would be responsible for the costs of the forensic examination of the computer.

Where the party requesting discovery seeks inaccessible ESI, in an effort to protect the responding party from potential undue burden or expense, the court will consider shifting the cost of production from the responding party to the requesting party. The Magistrate Judge began the determination in this case by reasoning that the need for the forensic examination could be directly attributed to the actions of the responding party in failing to preserve relevant ESI.  The responding party made inadequate efforts to search for the ESI and failed to deactivate network maintenance tools that automatically deleted ESI. This resulted in the need for the forensic examination to recover the information requested in discovery.  As a result, Judge Facciola concluded that the responding party should pay the costs of the forensic examination because it was the responding party's behavior that made the expensive discovery effort necessary.