Western District of Kentucky Rules on Discovery Related to the Production of Hash Values

Today, in Babcock Power v. Kapsalis, 2018 U.S. Dist. LEXIS 1973 (W.D. Ky.), the United States District Court for the Western District of Kentucky, approved, in part, a motion to amend a scheduling order, so additional expert discovery could be conducted. The plaintiff in this case moved for additional expert discovery on the basis of finding six previously undisclosed documents on a server after the review of a post-discovery production of hash values ordered by a magistrate judge. The plaintiff wanted to conduct depositions about production of the hash value data. The court granted the motion to conduct additional discovery from the electronic discovery vendor, but not from a subsequent third party purchaser of the server. Discovery is to be permitted when additional document that "hash values identified were transferred onto Express' server, how they were transferred, whether other files were transferred at the same time, where they were transferred to and whether they have been opened ." (Id. at 12-13).

The court approved a motion by the plaintiff for additional discovery of actual data. The defendant only produced Bates numbers, hash values, and file names of 760 files identified by the plaintiffs. A prior order by a magistrate judge required the production of all of the hash values on a server including, "LNK files, jump lists, and registry hives", at the time the server was analyzed by an electronic discovery vendor. (Id. at 4) The court ordered the production of the rest of the data specified in the magistrate's order under Federal Rule of Civil Procedure 26(a)(2)(B)(ii), which requires, "the facts or data considered by" an expert witness. The court would not however order the production of a copy of the server itself.