*1 This Court previously issued orders on the following discovery motions concerning plaintiff's work laptop that was backed up and then deleted while this litigation was ongoing: (1) defendants' Motion for an Order Compelling Production of Documents Deleted from HP Spectre Laptop Computer (ECF No. 140) (order issued on May 13, 2021 (ECF No. 145)); (2) defendants' Motion to Compel Testimony Concerning Laptop Spoliation (ECF No. 149) (order issued on June 7, 2021 (ECF No. 156)); and (3) plaintiff's Motion for a Protective Order to Prohibit Defendants from Deposing Plaintiff's Counsel and Their Agents (ECF No. 150) (order issued on June 16, 2021 (ECF No. 159)). With respect to each of these orders, defendants filed a Motion for Review with the District Judge. (ECF Nos. 154, 160, 169). Plaintiff opposed the motions seeking review, and defendants filed replies to plaintiff's Oppositions. (ECF Nos. 157, 158, 166, 174, 181, 188).

Plaintiff's June 28, 2021, Filing Regarding the Belatedly Discovered Backup Copy of the HP Laptop

On June 28, 2021, plaintiff filed an “Additional Statement re the Joint Discovery Stipulation for an Order to Compel Production of Documents from HP Spectre Laptop Computer” (“Statement”), notifying the Court and the parties that plaintiff's counsel “recently discovered a more complete backup of [the] laptop ... that contained additional files.” (ECF No. 165 at 3). Two of plaintiff's attorneys, Dan Stormer, a partner at the law firm Hadsell Stormer Renick & Dai LLP (“HSRD”) and Hanna Chandoo, an associate at HSRD, submitted declarations along with the Statement that explain why the complete backup of the HP laptop was not located at an earlier time.

According to the declarations, plaintiff brought three devices to HSRD in August 2019: the HP laptop she used for work; her recently purchased personal Mac laptop; and an external hard drive (referred to as the “Other Drive”). (ECF No. 165-1 at 5). During the next few days, HSRD's IT consultant, Samuel Sherwood, made backups of the devices. In particular, Mr. Sherwood plugged an external hard drive into the HP laptop and copied the laptop's C: Drive, capturing information such as “each user's Desktop, Documents folder, Downloads folder[,] Pictures folder, Videos folder, Applications folders and program files, and the operating system's files.” The backups were then saved on a computer in HSRD's offices, and Mr. Sherwood restored the HP laptop to a factory setting. (Id. at 5-6; ECF No. 165-2 at 4-5). Mr. Stormer states the following in his declaration: “HSRD's objective was to preserve the contents of the laptop and help Plaintiff transition to using two laptops”; it was understood “the C: Drive would contain all logs, registries, and system files that are stored on the computer, and all documents, pictures, videos, etc. that are saved on the computer”; and “it was never our intention to hide the fact that the Laptop had undergone a factory reset.” (ECF No. 165-1 at 6). Mr. Stormer explains that no one at his firm instructed Mr. Sherwood “to create a forensic image of the Laptop because our only objective was to preserve relevant evidence and at no point did we believe we would need a copy of the Laptop that was frozen in time in August of 2019.” (Id.). Mr. Stormer further explains that, when plaintiff retrieved her devices from HSRD after the backups were completed, a mixup occurred: plaintiff apparently took the external drive containing the backup of the HP laptop with her and left the Other Drive at HSRD. Subsequently, the Other Drive -- mistakenly believed by plaintiff's counsel to be the backup of the laptop -- was securely stored at HSRD. (ECF No. 165-1 at 6). During April 2020 to July 2020, plaintiff produced 65,267 pages of documents from the Other Drive, along with a privilege log. (Id. at 11).

*2 Ms. Chandoo, who joined HSRD in February 2021 and became the lead associate in this case, sets forth in her declaration the various steps she took to review and compare the files stored on the Other Drive and the backup that was saved on the firm's server. Ms. Chandoo describes numerous communications she had with the IT consultants and with plaintiff, and explains that on June 4, 2021, “it became clear” that the Other Drive was a drive completely separate from the backup of the laptop that was saved on the firm's computer, “which meant [HSRD] needed to immediately supplement [plaintiff's] production to comply with the Federal Rules.” (ECF No. 165-2 at 3, 12). Ms. Chandoo also learned that plaintiff possessed a USB drive that apparently had been plugged into the HP laptop at some point in time, and asked plaintiff to send the USB drive to HSRD. (Id. at 7, 11). Both Mr. Stormer and Ms. Chandoo state that on June 28, 2021, plaintiff “produced all nonprivileged and nonprivate files in the Backup along with a general description of documents that have been withheld on privacy or privilege grounds,” and that plaintiff “intends to serve a detailed privilege log by July 8, 2021.” (Id. at 12; ECF No. 165-1 at 17).

The District Judge's Referral and the Construed Motions for Reconsideration

On September 13, 2021, the District Judge referred the three orders (ECF Nos. 145, 156, 159) back to this Court in light of plaintiff's June 28, 2021, Statement and the lengthy attorney declarations about the belatedly discovered backup. (ECF No. 207).

Accordingly, the Court construes defendants' motions seeking review by the District Judge as motions for reconsideration of the three discovery orders in light of the Statement (ECF Nos. 145, 156, 159). Under Local Rule 7-18, “[a] motion for reconsideration of an Order on any motion or application may be made only on the grounds of (a) a material difference in fact or law from that presented to the Court that, in the exercise of reasonable diligence, could not have been known to the party moving for reconsideration at the time the Order was entered, or (b) the emergence of new material facts or a change of law occurring after the Order was entered, or (c) a manifest showing of a failure to consider material facts presented to the Court before the Order was entered. No motion for reconsideration may in any manner repeat any oral or written argument made in support of, or in opposition to, the original motion.” In light of plaintiff's Statement, which was filed after all three subject orders were issued, reconsideration is appropriate under the Local Rules.

The Court has reviewed the entirety of the filings concerning the construed motions for reconsideration, and addresses each discovery order below.

1. The May 13, 2021, Order granting in part and denying in part defendant Olympusat's Motion for an Order Compelling Production of Documents Deleted from HP Spectre Laptop Computer (ECF Nos. 140, 145)

The parties are familiar with the facts and allegations underlying the instant discovery disputes. Of relevance here, the May 13, 2021, Order required plaintiff's counsel to provide a sworn declaration stating that all documents responsive to RFP No. 469 (which requested all documents and electronically stored information (“ESI”) that were deleted on or before August 14, 2019, from the HP laptop) had been produced except for the documents listed on plaintiff's privilege log, and that no additional responsive documents existed. The May 13, 2021, Order also required defendant to return five privileged emails to plaintiff that were recovered from the HP laptop by defendant's computer expert, Corey Gildart, who conducted a forensic examination of the HP laptop in March 2021 and learned that a system reset had been executed on the device on August 14, 2019, resulting in a loss of data. (ECF No. 145 at 4-5; see also ECF No. 140-5). Additionally, the May 13, 2021, Order required the parties to select, and share the cost of, a neutral computer forensic expert who was to conduct a forensic analysis of the backup copy of the HP laptop. Plaintiff was ordered to provide the selected expert with the backup copy and a sworn declaration(s), from the individual(s) who backed up and then “wiped” the HP laptop, that set forth a detailed explanation describing the backup procedure and the wiping method that were implemented. Because plaintiff at that time had represented that all documents on the backup had been produced or listed in her privilege log, the Court limited the neutral expert's task to determining whether the backup contained any additional data or information that could be recovered -- meaning data/information that was separate from, or in addition to, the documents that plaintiff had already produced. The expert would then provide a written report to the parties explaining whether any additional data or information was located, and if so, the nature of the data/information, without disclosing the specific content of such data/information. (ECF No. 145 at 6-7). The May 13, 2021, Order was stayed while defendant sought review with the District Judge. (ECF No. 147).

*3 In the instant motion for reconsideration, defendant sets forth numerous arguments attacking the May 13, 2021, Order. In particular, defendant argues that the appointment of the neutral expert was “extrajudicial” and not authorized by the Federal Rules, and that the parties and counsel are entitled to review the evidence on which the expert relies. Defendant further argues that the backup copy should be turned over so that defendant's expert, Mr. Gildart, can compare the backup with the forensic image Mr. Gildart made of the HP laptop to determine if any documents or data were destroyed. (ECF No. 154-1 at 18-19, 22-23). Regarding the five privileged emails found on the HP laptop, defendant asserts that ordering defendant to return the emails was contrary to law, as it is not possible to remove the emails while maintaining the evidentiary integrity of the HP laptop and forensic image. (Id. at 24). Additionally, given plaintiff's belated discovery of the complete backup copy of the HP laptop, defendant requests that plaintiff be compelled to produce all ESI responsive to RFP No. 469, including all of the ESI and backups outlined in the attorney declarations. (ECF No. 167 at 2). According to defendant, plaintiff has produced around 1.5 million pages of documents from the belatedly discovered backup. (Id. at 3).

After careful consideration of the parties' arguments and allegations, the Court grants in part defendant's motion seeking reconsideration of the May 13, 2021, Order to the extent set forth below.

First, given plaintiff's counsel's representations that the entirety of the documents from the belatedly discovered complete backup have now been produced, and in light of the information set forth in defendants' pending Motion to Amend Scheduling Order that plaintiff produced a privilege log on August 9, 2021, for the documents from the backup that were withheld as private and/or privileged (see ECF Nos. 206-1, 206-2), the Court orders plaintiff's counsel to provide defendant a declaration, signed under penalty of perjury, stating that all documents and ESI responsive to RFP No. 469 have now been produced, including any responsive documents/ESI contained in plaintiff's USB drive, and that no additional responsive documents/ESI exist other than the items listed on plaintiff's privilege log.

Next, regarding the five privileged emails that defendant was ordered to return to plaintiff, the Court is persuaded by defendant's assertion that removing the emails at this time from the HP laptop and forensic image could affect the evidentiary integrity of these items. As defendant represents that the emails, if left undisturbed on the HP laptop and forensic image, will not be viewed or considered, the Court modifies the May 13, 2021, Order as follows: at this time, defendant is not required to return the five privileged emails that reside on the HP laptop and the forensic image; aside from the subject emails that are located on the HP laptop and forensic image, any additional copies of the emails must be returned to plaintiff (i.e., any physical copies that may have been made, or copies that may have been sent by email); and within thirty (30) days after the final disposition of this action, defendant shall return the five emails from the HP laptop and forensic image to plaintiff, along with a declaration, signed by defendant's counsel under penalty of perjury, that the emails were returned as ordered.

Regarding defendant's request to have plaintiff produce the belatedly discovered backup copy so that Mr. Gildart can examine and compare the backup with the forensic image of the HP laptop, the Court denies the motion for reconsideration. Given plaintiff's representation that the backup contains privileged information, the Court will not permit defendant's expert to examine the backup and review privileged documents. Additionally, although the Court previously ordered the parties to select a neutral computer forensics expert and ordered plaintiff to provide the backup copy to the selected expert for examination, defendant has rejected this relief as “extrajudicial” and inadequate, and has indicated no interest in pursuing such a neutral examination. As a result, the Court's earlier ruling ordering the parties to select a neutral expert is rescinded. While the Court, given the circumstances in this case, found the appointment of a neutral expert appropriate, such relief will no longer be ordered as a remedy in response to defendant's motion to compel and/or motion for reconsideration given defendant's objections to having a neutral expert examine the backup.[1] Accordingly, as the parties are no longer ordered to select a neutral expert, it follows that plaintiff is no longer ordered to produce the backup copy or the previously-ordered declaration(s) from the IT consultant(s) for any expert examination.

*4 The May 13, 2021, Order also required plaintiff to provide a revised privilege log that contained more detailed information for certain entries that defendant specifically challenged. (ECF No. 145 at 6). Defendant explains in the motion for reconsideration, however, that defendant was challenging the entirety of the privilege log -- not just the specific entries discussed in the motion to compel -- as each entry is defective for failing to provide sufficiently detailed information to permit an evaluation of whether the claimed privilege or protection applies. (ECF No. 154-1 at 24-25). The Court finds no basis for granting the motion for reconsideration with respect to the privilege log. The May 13, 2021, Order addressed each category of documents defendant specifically challenged, and denied the motion to compel to the extent defendant requested an order compelling plaintiff to produce every document on the privilege log. Defendant has not provided any additional arguments that explain with any specificity why other particular entries on the log are deficient, and plaintiff's Statement about the discovery of the complete backup copy has no impact on the Court's previous analysis concerning the adequacy of the privilege log. Accordingly, the motion for reconsideration is denied with respect to the privilege log.

2. The June 7, 2021, Order granting in part and denying in part defendants' Motion to Compel Testimony Concerning Laptop Spoliation (ECF Nos. 149, 156)

The Court's June 7, 2021, Order allowed two hours for plaintiff's continued deposition, and required plaintiff to respond to questions concerning what actions she took or that she observed were taken with respect to the copying and wiping of the HP laptop in August 2019, including questions about her personal knowledge concerning the deletion of laptop data and the creation of backup copies. The Order prohibited questions concerning plaintiff's communications with her attorneys on the basis that the attorney-client privilege protected such communications. (ECF No. 156). Plaintiff's continued deposition was stayed pending the resolution of defendant's motion seeking review. (ECF No. 163).

In light of the discovery of the complete backup and plaintiff's USB drive, and plaintiff's involvement in the circumstances surrounding the copying, the Court grants in part the motion for reconsideration to the extent that the deposition questioning of plaintiff is expanded to a total of four hours of actual deposition time (i.e., not including breaks). As stated in the June 7, 2021, Order, plaintiff must respond to questions concerning what actions she took or that she observed were taken with respect to the copying and wiping of the HP laptop in August 2019, including questions about her personal knowledge concerning the deletion of HP laptop data (including, but not limited to, emails) and the creation of backup copies. Additionally, plaintiff is ordered to provide responses to questions about the belatedly discovered USB drive. With respect to the USB drive, the Court notes that Ms. Chandoo states in her declaration that on April 29, 2021, she communicated with plaintiff regarding USB drives in plaintiff's possession. On June 1, 2021, after learning plaintiff had a relevant USB drive, Ms. Chandoo asked plaintiff to mail it to HSRD, and plaintiff agreed to do so. (See ECF No. 165-2 at 10-11). Based on these disclosures, the Court finds a limited waiver of the attorney-client privilege with respect to these discussions about the USB drive. See Cal. Evid. Code § 912 (attorney-client privilege “is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone”).

Aside from the communications about the USB drive, questions seeking information about the specific content of plaintiff's other communications with her attorneys regarding the HP laptop deletion remain prohibited, as the Court finds no additional waiver of the attorney-client privilege based on the attorney declarations. In other words, except for the topic of the USB drive, the Court finds that there were no additional disclosures of “significant parts” of other attorney-client communications. Moreover, defendants fail to show that any exception to the attorney-client privilege applies. In particular, the Court again concludes that the crime/fraud exception pursuant to California Evidence Code § 956 is not triggered, as there is no prima facie showing of a crime or fraud (or attempted crime or fraud) given that the HP laptop was backed up prior to the reset, and given plaintiff's production of voluminous documents from the belatedly discovered backup.

3. The June 16, 2021, Order granting in part and denying in part plaintiff's Motion for a Protective Order to Prohibit Defendants from Deposing Plaintiff's Counsel and Their Agents (ECF Nos. 150, 159)

*5 In the June 16, 2021, Order, the Court denied plaintiff's motion seeking a protective order to prohibit the depositions of the IT consultants (who are described by plaintiff as plaintiff's counsel's agents), but limited their deposition questions to facts regarding the methods and procedures they implemented, and the actions they took, when copying and wiping the HP laptop. Defendants were prohibited from asking the IT consultants any questions that involved communications with plaintiff's counsel, or that sought information concerning plaintiff's counsel's thought processes or strategies. The Court also granted plaintiff's motion with respect to the depositions of plaintiff's attorneys. Neither party requested that the Court stay the June 16, 2021, Order while defendants sought review. As a result, it is not clear if the depositions of the IT consultants have taken place.

In light of plaintiff's attorneys' declarations filed on June 28, 2021, the Court grants in part defendants' motion for reconsideration. With respect to the depositions of the IT consultants, the Court finds that questions involving communications with plaintiff's counsel regarding the copying and wiping of the HP laptop are permissible given the substantial disclosures describing such communications set forth in Ms. Chandoo's declaration (see ECF No. 165-2). Accordingly, in addition to responding to questions seeking information regarding the methods and procedures the IT consultants implemented, and the actions they took, when copying and wiping the HP laptop, the IT consultants are ordered to respond to questions about their communications with counsel regarding the HP laptop to the extent such communications have been disclosed by plaintiff's counsel.

The Court denies defendants' motion for reconsideration as to the depositions of plaintiff's counsel. As explained in the June 16, 2021, Order, depositions of counsel are disfavored. Here, given that the scope of the IT consultants' depositions have been expanded to include questions about attorney communications as described above, the Court concludes that defendants will have an adequate opportunity to explore what happened to the HP laptop in August 2019, and about the belated discovery of the complete backup, by questioning the IT consultants.

With respect to the Court's rulings set forth above, plaintiff's counsel shall provide the ordered declaration, and defendant shall return copies of the privileged emails, if any exist, within five (5) court days of this Order. In light of the posture of this case -- in particular the October 25, 2021, deadline for filing summary judgment motions -- the continued deposition of plaintiff, and the depositions (or continued depositions) of the IT consultants shall be conducted consistent with any schedule the District Judge provides.

IT IS SO ORDERED.