Ah the new and complicated world of how email production is handled by courts.
Scott Roseland, at cybercontrols (www.cybercontrols.net), cites to Benton v. Dlorah, Inc., 2007 U.S. Dist. D. Kan, Oct. 30, 2007. There, the plaintiff informed defendant at her deposition that she had deleted e-mails, and defendant filed a motion to compel plaintiff to produce relevant documents, to produce her hard drive, and for sanctions for spoliation of evidence.
Initially, the court ruled that the requesting party (defendant) had not adequately shown that the requesting party had refuted producing party's (plaintiff) assertions that she had produced all relevant documents, but allowed requestor to amend if further discovery demonstrated that producer had not produced all documents or "had spoliated relevant evidence." Id. at *3-*4.
On their subsequent motion to compel, requestors asserted that producer had admitted failing to produce a relevant e-mail, that she used her personal account instead of her work e-mail and admitted deleting "hundreds" of possibly relevant e-mails. Producer responded that requestor's request was not sufficiently tailored, that her personal computer contained personal and privileged information, and that the request constituted a "fishing expedition", not outweighing the harm to her.
The court ruled that producer must produce the relevant e-mails, which were responsive to requestor's request.
Deleting these e-mails, even if done in good faith and at a time before Plaintiff contemplated her legal action, does not necessarily remove the e-mails from her possession, custody or control. Deleted documents should be retrievable from her computer system and thus remain within in her control.
Id. at *7. The court ordered that if she could not produce the e-mails, "she shall produce for inspection her computer hard drive from which the deleted e-mails were sent. This will allow Defendants to use the services of a computer forensic specialist, if necessary, to retrieve them." Inspection of the drive would be limited to the subject of requestor's request. Id.
The court made no reference to any distinction between accessible and inaccessible data. In effect, deleted e-mails may now have moved into the realm of "accessible" data.
There is and will continue to be lack of uniformity in the way that courts handle production of email and other electronic data.