In Covad Communications Co., v. Revonet, Inc., 2009 WL 1472345 (D.D.C. May 27, 2009), U.S. Magistrate Judge John  M. Facciola issued an order permitting plaintiff's expert to make forensic copies and conduct a search of defendant's electronically stored information.  Defendant was ordered to pay the cost of the forensic copies and the cost of searching through the data.

Plaintiff alleged a breach of contract in connection with defendant's use of plaintiff's proprietary sales information. In discovery, plaintiff sought production of data from defendant's email and database servers as well as certain personal computers. Defendant's e-discovery vendor contended that obtaining some of the server information was unduly burdensome due to the age and fragility of the system and the cost of retrieving the information.  In contrast, plaintiff's expert opined that the cost of producing the data was about half of defendant's estimate and the actual extraction of such information would not place any more strain on the server than its normal day-to-day operation.

The court ordered defendant, subject to a protective order, to permit plaintiff's expert to make a forensic image of defendant's hard drives, email and database servers and computers to preserve information.  In making this determination, the court cited FRCP 26(b)(2)(B) and analyzed the facts in conjunction with the proportionality requirements of FRCP 26(b)(2)(C).  The parties were further ordered to meet and confer regarding the need for additional searching of defendant's electronic data.  Defendant was ordered to pay the cost of "producing" electronic information, including the cost of plaintiff's expert searching through the information to determine its relevance.