Prior to filing the instant motion, the Agency discussed its request for electronic discovery with Respondents. However, Respondents objected to allowing such discovery out of an expressed concern that the request sought privileged information. In response, the Agency assured Respondents that it was not seeking privileged information, but rather wanted only "information relating to the terms and conditions of employment and specifically . . . the Respondents' sign-in and sign-out practices that were at issue in the referenced . . . memorandum." Mot. to Compel at para. 5, Attachment L. Respondents subsequently submitted to the Agency a written objection to the electronic discovery asserting that it would be "overly broad and unduly burdensome" while also "invad[ing] the attorney-client privilege in that it includes communications between Respondents and their counsel." Mot. to Compel, Attachment M.

   The Agency argues that because "the Respondents have failed to fully search for and provide documents in their possession that would be responsive to the [Agency's] discovery requests . . . the [Agency] should be allowed to inspect the Respondents' electronic information and/or data," while protecting the Respondents's privileged information. Mot. to Compel at para. 7. To accomplish this task, the Agency proposes utilizing Ralph Miller, a DOL contractor who is qualified to inspect computers, disks, and other electronic storage devices, to search Respondents' electronically stored data. The Agency further proposes that none of its representatives, other than Mr. Miller, be present during such inspection, that the inspection be done in the presence of Respondents' counsel, that Mr. Miller be instructed to search only for information relating to terms and conditions of employment, and that Respondents be ordered to produce a "privilege log" with respect to any data that the contractor would be precluded from searching. In the event of a dispute as to whether information is privileged, the Agency further proposes allowing the contractor to print the information and to provide it to this court for in camera review. The procedures suggested by the Agency are reasonable, and consistent with such discovery in other cases.

   Whether to authorize electronic discovery requires that I balance the benefits of allowing DOL access to legitimately discoverable material against the burdens imposed on Respondents in providing access to its electronic data. See, e.g., Playboy Enterprises v. Welles, 60 F. Supp.2d 1050, 1054 (S.D. Cal. 1999). Such burdens not only include the costs of hiring an expert to inspect electronic data, but costs associated with the disruption of Respondents' business and the potential threat posed to materials which are legitimately covered by the attorney-client privilege.

   I find that ordering the electronic discovery sought by DOL in its motion to compel is appropriate in that it provides the Agency with access to specifically identified information which is relevant to the issues raised in this litigation. In addition, Respondents' incomplete, inconsistent, and delayed responses to the Agency's prior discovery requests further justify such discovery. Since I believe the financial costs associated with the Agency's utilization of a computer expert to carry out the discovery ordered herein are more appropriately assigned to DOL, there will be little or no financial burden imposed on Respondents in providing access to its electronic data. I also find that Respondents' privacy, attorney-client privilege, and business operations may be properly protected so long

as certain safeguards, including those proposed by DOL, are followed. Accordingly, the Agency will be allowed to inspect Respondents' computers and electronic storage devices under the following conditions:

1. No later than Tuesday, January 21, 2003, Respondents must provide to the Agency and the contractor a list of all target computers, servers, or data collections which may contain information relating to the July 3, 2001, memorandum attached to the Agency's motion to compel, the terms and conditions of employment governing any employee who performed work related to the subject contract, and all individuals who have electronic access to such information. Respondents may also provide a privilege "log" or "index" relating to electronic files allegedly containing privileged materials that the contractor would be precluded from searching. However, Respondents are warned that a blanket assertion of privilege is not permissible. Privilege may be asserted only with respect to specifically identified electronic files, and, for each such file, the claim must identify the electronic file, the maker, the intended recipient, each individual who received a copy thereof (including electronic or hard copy form), the date of the file, the purpose for which it was prepared, the nature of the privilege asserted, and sufficient facts to test the assertion of privilege.

2. Prior to initiating the inspection, the Agency shall provide Respondents with information regarding the scope of the contractor's inspection, including: date ranges and file types to be searched, the search terms, and the desired format of the results (e.g. text, database, media, etc.).

3. The Agency shall seek to reduce any burden placed on Respondents coordinating a time for the inspection to be conducted, but Respondents must allow the inspection to take place no later than Wednesday, January 22, 2003.

4. The Agency shall pay the costs of the contractor's inspection. Its contractor must also sign a protective order to act as an officer of this court and must act as an objective, third-party computer inspector. Respondents must provide the contractor with the access necessary to conduct the search.

5. Respondent Jeffrey Jones and Respondents' counsel may be present during the contractor's inspection, but no Agency representative may be present.

6. The contractor shall create a "mirror image" of the relevant electronic data using accepted forensic procedures and must preserve the integrity of the original evidence and the security of Respondents' electronic files.

7. To the extent that any data cannot be retrieved from Respondents' computers or electronic storage devices, or if the resulting data consist of less than the whole of data contained on a computer's hard drive, Respondents' counsel shall submit a declaration to the court – signed by counsel and the contractor – explaining the reason for the limited retrieval.

8. The contractor shall then search the "mirror image" according to the agreed upon search parameters and submit the search results to Respondents' counsel.

9. Respondents' counsel shall review the search results for relevance and privilege and produce the relevant, non-privileged search results in the agreed upon format to the Agency no later than Thursday, January 23, 2003. Respondents' counsel shall submit to this court a list of all search results not provided to the Agency no later than Thursday, January 23, 2003.

10. If any dispute arises as to the relevance or privileged nature of the search result and data, Respondents' counsel shall submit such material to the court for in camera review no later than Thursday, January 23, 2003.

11. No search results or data "disclosed" to the expert during the search will be considered a waiver of the attorney-client privilege.

   Based on the foregoing, IT IS HEREBY ORDERED that the Agency's Motion to

Compel is GRANTED.

      STEPHEN L. PURCELL
      Administrative Law Judge