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 (“Globe”) computer system, which the court had repeatedly ordered. The court concluded that Globe must comply with the court’s previous orders by allowing the forensic examination to be conducted, emphasizing that Globe’s continued disobedience with the court’s prior rulings mandating the forensic examination nearly resulted in a default judgment.
The court originally ordered a forensic examination of Globe’s computer systems which record its purchases and sales of Square D Products (“Square D”) and its inventory of such products over a year ago. After finding Globe in contempt of court for noncompliance, the court again ordered Globe to submit to a forensic inspection of its computers by Square D. At this time, Globe 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 that Globe allow the forensic examination to proceed.
The parties then scheduled the inspection. Square D advised the parties that it would inspect, image, and copy any electronically stored information located on Globe’s computers. Square D argues that Globe was again uncooperative, refusing to allow Square D to inspect all of the computers. As a result, Square D requests an order compelling Globe to submit to a forensic inspection of its remaining computer systems that Globe refused to allow examination on and seeks a default judgment against Globe for its conduct related to the ongoing discovery request.
Globe argued that “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 that “Globe’s long history of obstinate behavior in the discovery process and seeming lack of candor” makes the court unable to accept Globe’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.” Square D 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 Square D to review all imaged and copied ESI at Globe’s facility, it is too late to make the request now.
Finally, Square D requests a default judgment in light of Globe’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 Globe “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 Square D’s motion compelling Globe to submit to a forensic examination of its remaining computer systems and required Globe to allow data to be removed from the premises. The court also emphasized its frustration with Globe 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.”