United States District Court, W.D. Washington, Seattle
ORDER
JOHN
C. COUGHENOUR UNITED STATES DISTRICT JUDGE
This
matter comes before the Court on Defendant Axis Surplus
Insurance Company's motion for the Court to order David
L. Anderson, dba D.L. Anderson, Inc. (“DLA”), to
comply fully with Defendant's subpoena duces
tecum (Dkt. No. 71). Having thoroughly considered the
parties' briefing and the relevant record, the Court
GRANTS in part and DENIES in part Defendant's motion for
the reasons explained herein.
The
Court has described the underlying facts of this case in
previous orders and will not repeat them here. (See
Dkt. Nos. 43, 50, 58). DLA is owned by the father of one of
Plaintiffs' owners. (Dkt. No. 71.) Following
Plaintiff's weather-related loss, Plaintiff engaged DLA
to make emergency repairs and to provide an estimate of the
repairs needed to remedy its loss-related damages.
(Id. at 2-3.) Defendant issued a November 27, 2017
subpoena to DLA to produce documents relating to the work it
performed. (Id. at 3); (see Dkt. No. 73-2
at 12-15) (subpoena seeking: “All documents . . . in
your possession referring or relating in any way to Premier
Harvest or the property leased by Premier Harvest in Adak,
Alaska.”). DLA responded that it would provide what it
could but it had “no remaining MS Word, Excel or photo
records due to a computer virus which wiped out all of those
records.” (Dkt. No. 73-2 at 17.)
Defendant
asked to inspect and test the affected hard drive at
Defendant's cost, using an independent forensic computer
specialist. (Dkt. No. 71 at 4.) This would involve cloning
the hard drive and sending the cloned version off-site for
analysis and file recovery. (Id.) Recovered files
could then be sent directly to DLA for review. (Id.)
DLA would determine which files were responsive to the
subpoena, and produce those files, unless DLA determined such
files were subject to privilege or protection. (Id.)
Following
Defendant's proposal and further discussions between DLA
and Defendant's counsel, DLA indicated that it had
located a backup of the hard drive at issue and concluded
“it seems we can satisfy the requirements of the
subpoena” without providing the infected hard drive for
cloning. (Dkt. No. 73-2 at 188.) DLA further indicated that
if this approach did not satisfy Defendant, DLA would allow
“an agreed upon independent computer specialist to copy
[files off the infected hard drive] . . . but that must be
done in my office and they would only be allowed to copy and
remove [responsive documents] . . . [the independent computer
specialist] would not be allowed to remove entire copies of
the hard drive.” (Dkt. No. 73-2 at 188.)
Defendant's
counsel indicated to DLA that responsive files from the
backup would satisfy the subpoena, so long as DLA's
computer specialist signed a written statement indicating the
backup DLA had located contained “all information that
was damaged or lost on the laptop as a result of the
virus.” (Id. at 194.) Absent such a
declaration, there is no way of knowing whether DLA has, in
fact, located and provided all responsive documents from the
infected hard drive. Defendant contends that, absent the
attestation described above, DLA's conditions would not
satisfy the subpoena because the entire affected
hard drive-not just responsive documents that can be
recovered on-site- must be cloned and sent off-site to ensure
that all potentially- recoverable responsive files are, in
fact, recovered. (Dkt. No. 73-2 at 183); (see Dkt.
No. 72 at 2- 3) (forensic computer specialist's
declaration describing the recovery process and the need for
off-site access to the entire hard drive).
DLA has
since provided Defendant a flash drive containing what DLA
contends are “all pertinent Premier Harvest emails and
documents from the back up files.” (Dkt. No. 87-1 at
5.) But DLA has not provided an attestation that the backup
it located contained all of the files from the infected hard
drive. (Id. at 5-6.)
Defendant
seeks an order that DLA fully comply with the subpoena, and
if DLA cannot verify that all information stored on the
infected hard drive is available via back up files, Defendant
seeks an order that DLA provide Defendant's forensic
computer specialist access to the laptop and hard drive at
issue, and that DLA produce all responsive documents within
ten days of the specialist's evaluation of the hard
drive. (See generally Dkt. No. 71.)
Absent
undue burden or cost, or claims of privilege or protection, a
person served with a subpoena duces tecum for
documents and electronically stored information must produce
that information. Fed.R.Civ.P. 45(e). If the recipient fails
to do so, or to timely object, the party serving the subpoena
may seek an order to compel the recipient to produce the
documents or to furnish for inspection the files containing
the documents. Fed.R.Civ.P. 45(d)(2)(B)(i). A person who
fails comply with a court order to produce documents may be
held in contempt. Fed.R.Civ.P. 45(f); Pennwalt Corp. v.
Durand-Wayland, Inc., 708 F.2d 492, 495 (9th Cir. 1983).
Absent
an affidavit from DLA that the backup files it located
contain all the information from the infected hard drive,
Defendant has no assurance that DLA has provided all
potentially-available responsive files. Defendant's
suggested approach-having an independent forensic computer
specialist clone the entire affected hard drive, send it
off-site for analysis, and provide all recovered files to DLA
for review before responding to the subpoena-is reasonable.
But the Court emphasizes that the forensic computer
specialist Defendant contracts with must be independent of
Defendant. Based on the declaration provided by Kevin M.
Hecksher, the Court concludes that Mr. Hecksher is an
independent forensic computer specialist. (See Dkt.
No. 72 at 1-9.)
For the
foregoing reasons, Defendant's motion to compel (Dkt. No.
71) is GRANTED in part and DENIED in part. DLA is ORDERED to
either:
(1)
Provide Defendant within seven (7) days:
a. a
signed attestation from its computer specialist that all
information stored on the virus-infected hard drive is
available by means of backup files, and
b. a
signed attestation from a DLA representative that it reviewed
those back up files and provided all responsive files to
Defendant in the thumb drive referenced in Dave
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