The Appellate Division affirmed the denial of the motion to appoint an expert to conduct a forensic examination of plaintiff's computer system. A court may order discovery of electronically stored information where the party seeking the discovery makes a showing that includes that the files sought can actually be obtained by the methods suggested. Here, though, defendants do not seek any particular document, but, instead, an examination of plaintiff's drives to determine whether any documents exist that have not been exchanged or obtained from third parties. Although defendants had also previously sought to determine when particular invoices were created, plaintiff has admitted that they were all created together, outside of its accounting program, and backdated, mooting that basis for forensic examination of plaintiff's system.
Case: Shop Architects, P.C. v 25th St. Art Partners LLC, NY Slip Op 08121 (1st Dep't December 1, 2016)
Here is the decision.
Tomorrow's issue: Interposing a defense waived under CPLR 3211(e).