In the latest of several Pescoff 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.  Judge Facciola previously addressed the sufficiency of a search done by the responding party for emails and other electronically stored information 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.  However, the parties could not agree who would absorb the costs, so the Magistrate judge 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 electronically stored information, the court will consider shifting the cost of production from the responding party to the requesting party when inaccessible data is sought in an effort to protect the responding party from potentially undue burden or expense.  In making a determination in this case, the Magistrate judge began by reasoning that the need for the forensic examination could be directly attributed to the actions of the responding party in failing to preserve the electronically stored information that was relevant to the dispute.  The responding party made inadequate efforts to search for the electronically stored information and failed to deactivate network maintenance tools that automatically deleted electronically stored information, which resulted in the need for the forensic examination to recover the information asked for 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.