The moving party sought an order appointing a computer forensic expert to inspect the responding party’s computer systems to determine the authenticity of certain emails allegedly exchanged between employees.
The motion alleged a lack of transparency in the responding party’s investigation and requested inspection of servers and archived email systems.
The court accepted the responding party’s evidence that no trace of the emails existed in its live exchange system or archival vault and that prior internal and forensic reviews found no record of the communications.
Applying a threshold requirement that there be a real likelihood the emails once existed and were deleted, the court held the moving party’s request was based on speculation.
Given the intrusive nature of inspecting a competitor’s computer systems and the principle of proportionality in discovery, the court refused the requested order.
