In Bell ExpressVu Limited Partnership v. Heeren, after executing an Anton Piller order against the defendant and seizing a bunch of hard drives, Bell ExpressVu moved “for an order compelling the defendant to further review the contents of computer hard drives which are in his possession, control or power, and to again search for and identify relevant documents.  In addition, the plaintiff seeks an order requiring Wilhelmus Heeren to deliver a further and better affidavit of documents.” Marrocco J. dismissed the motion in these terms:

[8]      Rule 30.03(2) of the Rules of Civil Procedure provides that the affidavit of documents shall list and describe all documents relevant to any matter in issue in the action that are in a party’s “possession control or power…”.  In this case, the respondent’s hard drives were seized under an Anton Piller order.  They were imaged and the imaged hard drives were made available to the plaintiff.  The plaintiff can have access to the imaged hard drives at any time.  Therefore, it seems to me that the imaged hard drives are within the power, if not also the possession and control of the plaintiff.  Therefore, pursuant to Rule 30.03(2), the plaintiff is obliged to review the documents on the imaged hard drives when preparing its affidavit of documents.

This entry was posted on Monday, February 8th, 2010 at 11 11 09 02092 and is filed under Caselaw, E-Discovery. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.