Cloning a computer hard drive is a significant tool that should not be overlooked when seeking to uncover electronically stored information. However, a motion seeking to clone an opposing party’s hard drive may likely only be successful upon demonstrating that the information sought could not be obtained any other way.
Courts want more than speculation that the requested ESI would ordinarily have been stored on the hard drive, and may require a substantiated proffer that the failure to voluntarily produce such ESI is due to its unintentional retention or deletion or a more sinister motive.
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