Court Denies Forensic Imaging After Parties Do Not Agree to Production at Meet-and-Confer


Boston Scientific Corp. v. Lee, No. 2041 U.S. Dist. LEXIS 107584 (N.D. Cal. Aug. 4, 2014). In this intellectual property case, the plaintiff corporation alleged that the defendant’s employment with another company breached his confidentiality agreement with the plaintiff and violated trade secret law. At a meet-and-confer, the defendant proposed to give the plaintiff a narrow forensic image of just one of the defendant’s laptops. However, the plaintiff sought to subpoena a complete forensic image of two of the defendant’s laptops. The defendant’s new employer moved to quash on the grounds that the demand was unwarranted and risked the disclosure of privileged information. The court agreed with the defendant’s argument, and held that the plaintiff’s request was not permitted under Fed. R. Civ. P. 45. The court worried about the accidental disclosure of “crown jewels,” especially in “competitor-competitor litigation, like this one.” After losing its motion, the plaintiff sought the original offer of a narrower forensic image of the first laptop, but the court disallowed that option, concluding that allowing such a fallback would “make a mockery of both parties’ obligation to meet and confer in good faith at the start. The time to tap flexibility and creativity is during the meet and confer, not after.”


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