When will a court demand a third party to produce forensic images of laptops of new employees when they previously cooperated at the meet and confer?

When Should A Company Take What Is Offered At the Meet and Confer and Not Take Any Risks?

A party demands the sun, moon and stars in a document request or interrogatory, refusing to give even a little bit. The meet and confer required by a court in advance of a motion is perfunctory at best, with no compromise whatsoever. But when the parties appear before the court, the recalcitrant party possesses newfound flexibility and a willingness to compromise.

– Hon. Paul S. Grewal

This case is a demonstration of when a company should be flexible during the meet and confer because a good offer does not make its way back around and it is risky to not accept it. The plaintiff, in this case, issues a subpoena on a third party, seeking the production of a complete forensic image of two laptops utilized by the defendant. The defendant, a former employee of the plaintiff, has since been working with a third party company, a competitor and nonparty to this action.

During the meet and confer, the third party company offered “to have an independent vendor review a full forensic image of the first laptop to search for pertinent information, including a review of any deleted files.”  The plaintiff refused. The third party company issued two laptops to the defendant. The first was segregated upon hearing about this case. At which point the third party produced to the plaintiff “forensic information about the contents of the first laptop in the form of file listing reports, which disclose extensive metadata of the files contained on the laptop, USB reports, and web browsing history reports” and a second laptop was issued. Both laptops were utilized by the defendant in the course of his work and contained privileged communications.

The third party company argued that the demanded forensic images of the two laptops was unwarranted and risked disclosure of protected information that was not the subject of discovery in this case. The law states that a court may quash a subpoena “in the event the subpoena requires disclosure of a trade secret or other confidential research, development, or commercial information.” Thus, the judge in this case ruled to quash the subpoena. The court reasoned that the second laptop, which was issued after suit was filed, was “not discoverable.” Additionally, as to the first laptop, the court determined that while there was “no doubt” that discoverable information existed on the two laptops, “by demanding nothing less than a complete forensic image of not just one but two laptops belonging to a direct competitor, the plaintiff demands too much.” The court explained that the requested production would “disclose privileged communications . . . as well as irrelevant trade secrets from a nonparty-competitor” and that the subpoena thus sought “discovery of protected matter, something plainly not permitted under Rule 45, rendering the subpoena overbroad and imposing an undue burden.” It is important to note that because this was competitor-competitor ligation, there was a lot more on the line as to confidential information.

The judge also declined to allow the plaintiff to accept the non-party’s prior offer from the meet and confer to allow an independent vendor to review the first laptop for pertinent information. The court stated “But to allow Boston Scientific now to seek shelter from a fallback position that Nevro previously tendered in good faith would make a mockery of both parties’ obligation to meet and confer in good faith from the start. The time to tap flexibility and creativity is during meet and confer, not after.

Amanda is a third-year student at Seton Hall University School of Law, where she is pursuing a J.D. with a certificate in Health Law. Prior to law school, she was a 2011 magna cum laude graduate of Seton Hall University, where she earned Bachelor of Arts in Political Science and a minor in Philosophy. Presently, she is a law clerk at a small firm handling real estate and bankruptcy matters. After graduation this native New Yorker hopes to work at a mid-sized firm in the Big Apple. 

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