In Square D Co. v. Scott Elec. Co., No. 06-00459, 2008 WL 2779067 (W.D. Pa. July 15, 2008), the District Court for the Western District of Pennsylvania addressed concerns about the execution of a forensic inspection of defendant Globe Electric Supply Co.’s computer system, which the court had repeatedly ordered.  The court concluded that defendant must comply with the court’s previous orders by allowing the forensic examination to be conducted, emphasizing that defendant’s continued disobedience with the court’s prior rulings mandating the forensic examination nearly resulted in a default judgment.

The court originally ordered, over a year ago, a forensic examination of defendant's computer systems which record its purchases, sales and inventory of plaintiff's products and its inventory of such products.  After finding defendant in contempt of court for noncompliance, the court again ordered defendant to submit to a forensic inspection of its computers by plaintiff.  At this time, defendant filed a motion with the court arguing that the inspection constituted a "fishing expedition" that would result in "staggering" costs.  The court rejected the argument, again ordering defendant allow the forensic examination to proceed.      

The parties then scheduled the inspection.  Plaintiff advised the parties that it would inspect, image, and copy any electronically stored information ("ESI") located on defendant's computers.  Plaintiff argues that defendant was again uncooperative, refusing to allow plaintiff to inspect all of the computers.  As a result, plaintiff requested an order compelling defendant to submit to a forensic inspection of its remaining computer systems that defendant refused to allow examination on and sought a default judgment against defendant for its conduct related to the ongoing discovery request.   

Defendant argued, "there is only one server and two work stations that have any connection whatsoever with Square D products," so the forensic examination should be limited.  The court rejected the argument stating, "Globe's long history of obstinate behavior in the discovery process and seeming lack of candor" makes the court unable to accept defendant's representation regarding the computers.  "If Globe wished to so limit the forensic inspection, it should have sought leave of Court to do so long ago as opposed to imposing limitations on the day of the inspection."  Plaintiff then requested an order "mandating that Globe Electric allow any imaged and copied data to be removed from Globe Electric's premises... for further querying."  The court reasoned that because previous orders never required plaintiff to review all imaged and copied ESI at defendant's facility, it is too late to make the request now.  

Finally, plaintiff requested a default judgment in light of defendant's repeated refusal to adhere to court orders regarding the forensic examination of the computers.  In determining whether to impose default judgment, the court considered such factors as the extent of the party's personal responsibility, the prejudice to the adversary, the history of dilatoriness, whether the conduct was willful or in bad faith, the effectiveness of other sanctions and the merits of the claim.  Ultimately, the court declined to enter default judgment against defendant stating, "at this point in the litigation because... Globe's failure to comply with the court's orders concerning the forensic inspection and overall lack of respect and deference to the court's authority falls just shy of conduct befitting default judgment."   

The court granted plaintiff's motion compelling defndant to submit to a forensic examination of its remaining computer systems and required defendant to allow data to be removed from the premises.  The court also emphasized its frustration with defendant that has resulted during the discovery process, stating that "further restrictions unilaterally imposed by it or its counsel on the forensic examination (in any regard)... will be met with sanctions."