Obtaining Forensic Imaging Orders for ESI

In the era of paper discovery, a party who believed that responsive documents had been withheld from production would file a motion to compel, which is governed by specific provisions in the Code of Civil Procedure. In the modem era of electronically stored information (ESI), a key remedy for a party seeking the production of ESI is an imaging order. Although the Code of Civil Procedure does not address imaging orders, a party litigating in state court may rely upon a growing body of case law, mostly from the federal courts. In this article, Loeb & Loeb senior counsel Daniel Friedman examines these court decisions, which generally hold that notwithstanding concerns over privacy and privilege, imaging orders are appropriate upon a showing that an adverse party’s production of ESI was incomplete or otherwise unreliable.