Brian Peterson reports here on the spoliation issue in an e-discovery dispute in a case from right here within the Fourth Circuit.
My observation of e-discovery to date is that its main uses are intimidation through cost and embarrassment. E-mails are often useful, whole hard drives are rarely so.
So, I read this in an e-mail flyer for somebody's seminar:
"Many attorneys harbor the false belief that they can demand the production or mirroring of an opponent's hard drive. Federal Rule of Civil Procedure 34(a) does not create a direct route to a party's Electronically Stored Information system. Copying a hard drive is allowed only on a finding that the opponent's document production has been inadequate and that a search of the opponent's computer could recover deleted relevant materials. Diepenhorst v. City of Battle Creek, Slip Copy, 2006 WL 1851243.
One Court refused to allow mirroring of a hard drive on mere suspicion that the opponent may be withholding discoverable information. Another Court allowed for the mirroring of a computer hard drive upon a finding of evidence that copies of emails were altered to downplay or conceal the relationship between plaintiff and a third party. Advante International Corp., et al., v. Mintel Learning Technology, et. al., 2006 WL 3371576 (N.D.Cal)."