RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0226p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

JOHN B.; CARRIE G.; JOSHUA M.; MEAGAN A.;

ERICA A., by their next friend, L.A.; DUSTIN P. by

his next friend, Linda C.; BAYLI S. by her next

friend, C.W.; JAMES D. by his next friend, Susan H.;

ELSIE H. by her next friend, Stacy Miller; JULIAN C.

by his next friend, Shawn C.; TROY D. by his next

friend, T.W.; RAY M. by his next friend, P.D.;

ROSCOE W. by his next friend, K.B.; WILLIAM B. by

his next friend, K.B.; JACOB R. by his next friend,

Kim R.; JUSTIN S. by his next friend, Diane P.;

ESTEL W. by his next friend, E.D.; individually and

on behalf of all others similarly situated, 

Plaintiffs-Appellees,

v.

M.D. GOETZ, JR., Commissioner, Tennessee

Department of Finance and Administration; DARIN

GORDON, Assistant Commissioner, Bureau of

TennCare; VIOLA P. MILLER, Commissioner,

Tennessee Department of Children’s Services,

Defendants-Appellants.

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No. 07-6373

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 98-00168—William J. Haynes, Jr., District Judge.

Argued: March 20, 2008

Decided and Filed: June 26, 2008 

Before: COLE, GIBBONS, and ROGERS, Circuit Judges.

_________________

COUNSEL

ARGUED: Michael W. Kirk, COOPER & KIRK, Washington, D.C., for Appellants. Michele M.

Johnson, TENNESSEE JUSTICE CENTER, Nashville, Tennessee, for Appellees ON BRIEF:

Michael W. Kirk, Charles J. Cooper, Brian S. Koukoutchos, Nicole Jo Moss, Derek L. Shaffer,

COOPER & KIRK, Washington, D.C., Linda A. Ross, OFFICE OF THE TENNESSEE

1
No. 07-6373 John B., et al. v. Goetz, et al. Page 2

ATTORNEY GENERAL, Nashville, Tennessee, Ronald G. Harris, Aubrey B. Harwell, Jr., NEAL

& HARWELL, Nashville, Tennessee, for Appellants. Michele M. Johnson, G. Gordon Bonnyman,

Jr., TENNESSEE JUSTICE CENTER, Nashville, Tennessee, for Appellees. William P. Marshall,

OHIO ATTORNEY GENERAL OFFICE, Columbus, Ohio, Michael A. Cox, MICHIGAN

DEPARTMENT OF ATTORNEY GENERAL, Lansing, Michigan, Gregory D. Stumbo, OFFICE

OF THE ATTORNEY GENERAL, Frankfort, Kentucky, Sarah Somers, Jane Perkins, NATIONAL

HEALTH LAW PROGRAM, Chapel Hill, North Carolina, Elizabeth A. Alexander, Christopher E.

Coleman, LIEFF, CABRASER, HEIMANN & BERNSTEIN, Nashville, Tennessee, Kelly M.

Dermody, Allison S. Elgert, LIEFF, CABRASER, HEIMANN & BERNSTEIN, San Francisco,

California, for Amici Curiae.

ROGERS, J., delivered the opinion of the court, in which GIBBONS, J., joined. COLE, J.

(p. 12), delivered a separate concurring opinion.

_________________

OPINION _________________

ROGERS, Circuit Judge. State defendants seek mandamus relief from two discovery orders

issued by the district court during the course of this class-action litigation. The district court issued

the orders after a discovery dispute arose regarding defendants’ duty to preserve and produce

electronically stored information relevant to the litigation. In the first order, the district court

directed plaintiffs’ computer expert and a court-appointed monitor to inspect the state’s computer

system and the computers of 50 key custodians to ascertain whether any relevant information has

been impaired, compromised, or removed. The second order denies reconsideration of the first order

and directs that the first order be executed forthwith. Both orders allow plaintiffs’ computer expert

to make forensic copies of the hard drives of identified computers, including not only those at the

work stations of the state’s key custodians, but also any privately owned computers on which the

custodians may have performed or received work relating to the TennCare program. The orders also

direct the U.S. Marshal, or his designated deputies, to accompany plaintiffs’ computer expert to

ensure full execution of the orders. This court entered an emergency stay of implementation of the

orders on December 7, 2007. For the reasons stated below, we now grant in part defendants’

petition for mandamus.

I.

This case arises from class-action litigation related to Tennessee’s TennCare program. In

1993, Tennessee obtained a waiver from the Secretary of Health and Human Services to replace its

fee-for-service Medicaid program with a managed care system called TennCare. In 1998, the instant

action was filed on behalf of a class of approximately 500,000 children enrolled in the TennCare

program, seeking to enforce certain provisions of the Social Security Act. Title XIX of the Social

Security Act requires state plans that accept federal funding, like TennCare, to provide Medicaideligible persons under the age of 21 with certain Early and Periodic Screening, Diagnosis and

Treatment (EPSDT) services. See 42 U.S.C. §§ 1396a(a)(43), 1396d(r). These services include

regular medical screening, vision, hearing, and dental services. § 1396d(r).

Almost immediately after the case was filed, the parties entered into a Consent Decree. The

decree recognized a number of deficiencies in the TennCare program and set goals and time frames

for compliance with federal law. Pursuant to the decree, the state retained an expert to evaluate

EPSDT services for children. After the expert submitted a report in late 1998, the parties submitted

two proposed agreed-upon orders and entered into a remedial plan. The district court approved the

orders in May 2000. Eventually, the state encountered difficulty implementing the remedial plan

and moved to stay implementation of the plan and modify the agreed-upon orders. In response,
No. 07-6373 John B., et al. v. Goetz, et al. Page 3

1

The dispute regarding the ex parte communications involved the special master’s submission of an August

2, 2004 status report to the court. The status report allegedly “repeatedly cited statements Defendants had made in

confidence to the Special Master’s Office pursuant to the compliance evaluation process.” 

2

MCCs deliver the health care services to the plaintiff class. 

plaintiffs moved to hold defendants in contempt for violating both the Consent Decree and the May

2000 orders. 

In December 2001, the district court, with Judge Nixon then presiding, ruled on the motions

after three weeks of hearings. The court noted that “[t]he record demonstrates that the Defendants

have been, for the most part, well-intentioned and diligent in attempting to comply with both the

Consent Decree and federal EPSDT requirements,” but expressed that “from the beginning, the

State’s efforts have been hampered by institutional inefficiencies and fundamental problems

associated with the TennCare system.” John B. v. Menke, 176 F. Supp. 2d 786, 790, 791 (M.D.

Tenn. 2001). Ultimately, the district court concluded that the state had not established compliance

with federal EPSDT requirements, and held in abeyance consideration of whether defendants were

in contempt for violating the Consent Decree. Id. at 791, 800, 806-07. As a remedy, the district

court appointed a special master to confer with the parties and to submit a plan to address the

deficiencies in the TennCare program. Id. at 807-08. 

In 2004, the Governor of Tennessee proposed TennCare reform to control the mounting costs

of the program. On account of these reforms, the parties again began to dispute issues related to the

state’s compliance with the Consent Decree. In June 2004, plaintiffs moved for an order to show

cause why defendants should not be held in contempt for violating the decree. On October 22, 2004,

the district court issued a second order finding the state noncompliant and instructing the special

master to create a remedial plan. 

On November 18, 2004, defendants moved for leave to take discovery on the ground that the

court’s October 22, 2004 order and plan were the product of allegedly improper ex parte

communications between the court and the special master.1

 Thereafter, the case was held in

abeyance for a time. On December 13, 2005, the court, at the proposal of both plaintiffs and

defendants, vacated its October 22, 2004 order and denied as moot defendants’ discovery requests.

However, on December 21, 2005, defendants renewed their motion for discovery, contending that

the vacatur of the October 22, 2004 order did not eliminate the potential prejudice resulting from

the ex parte communications between the judge and the special master. 

In response to defendants’ renewed motion for discovery, Judge Nixon recused himself from

the case. In his order of recusal of February 3, 2006, Judge Nixon wrote that he recused himself “to

remove any barrier—perceived or real—to the ultimate goal of increasing the State’s compliance

with EPSDT requirements.” The case was then transferred to Judge Haynes, who had handled

another branch of TennCare litigation. Judge Haynes held a status conference on February 10, 2006,

to discuss outstanding issues with the parties’ counsel. After review of the record, Judge Haynes

decided to retain the special master as a technical advisor and appoint monitors to assist the parties

and the court in identifying issues remaining in the case.

At the February 10, 2006 conference, defendants took the position that the state had achieved

compliance with the Consent Decree. In response, plaintiffs propounded discovery requests in

March 2006 seeking information and documents, including electronically stored information

(“ESI”), relevant to the state’s compliance. Defendants responded on May 15, 2006, but converted

responsive ESI to hard paper copies. Between May and August 2006, the parties disputed whether

the state was required to produce ESI as opposed to hard copies, and also disputed whether the state

was required to provide responsive documentation from managed care contractors (“MCCs”).2
No. 07-6373 John B., et al. v. Goetz, et al. Page 4

3

For discovery purposes, there are 50 key record custodians that were apparently proposed by plaintiffs and

accepted by defendants. The state also provided a list of over 160 designated record custodians (of which the 50 key

custodians are part) whose files were reviewed for the purpose of responding to discovery requests. 

4

Prior to the January 14, 2007 order, the district court entered an order at a December 20, 2006 status

conference that instructed defendants to “make a forensic copy of the current ‘My Documents’ or equivalent folder from

the local machines of all designated custodians.” In response, the state raised questions about the method of preservation

of responsive ESI and, based on the consensus of the parties, the court allowed defendants to use zip software rather than

forensic copying to preserve responsive ESI. 

5

On March 17, 2004, the state issued a memorandum to work teams established by the Governor to reform the

TennCare program. This memorandum acknowledged a duty to preserve relevant ESI and other information, and set

out procedures for such preservation. The parties have disputed the scope and purpose of this memorandum. 

When the parties could not resolve these issues, plaintiffs filed a motion to compel discovery on

October 13, 2006. Prior to the dispute over ESI production, defendants had produced massive

amounts of information by hard paper copy. 

On November 21, 2006, the district court granted the plaintiffs’ motion to compel in part.

The court ordered defendants to provide responsive documents to plaintiffs in electronic format,

subject to defendants’ right to “claw-back” privileged documents. The court also ordered defendants

to provide a written description of the technical specifications regarding the state’s electronic data,

and further provided that the parties were to create a protocol for production of electronic records.

Because defendants conceded that some hard documents provided were produced in incomplete

form, the court permitted the plaintiffs to obtain assurances on the completeness of discovery

responses by requesting certification of all persons who were involved in searching the records and

making discovery available on the state’s behalf. The district court also ordered defendants to

produce responsive documents in the possession of the MCCs.

On December 6, 2006, the district court held an “experts only” conference, where it directed

the parties’ computer experts to confer to develop a protocol to address problems with electronic

discovery. At the end of the conference, the parties’ experts announced a protocol for discovery and

preservation of responsive ESI. The parties settled on electronic searches with keywords to be

identified by the plaintiffs. The defendants were obliged to survey individuals identified as

designated record custodians to ascertain whether those individuals had preserved relevant ESI.3

On January 14, 2007, the court entered an order that authorized defendants to use zip software

instead of forensic methods to preserve ESI.4 The court also ordered defendants to file certifications

from all record custodians as to whether any relevant information had been “removed” from their

computers.

In the ensuing weeks, the parties continued to dispute issues related to the production of ESI.

The dispute culminated in the plaintiffs’ filing a renewal of their motion to compel discovery on

March 8, 2007. The district court conducted a hearing on the motion in June 2007 and, on October

9, 2007 and October 10, 2007, issued a 187-page memorandum opinion and accompanying order

granting the motion to compel. In the memorandum opinion, the district court concluded that, from

its perspective, “the core of this ESI discovery controversy is the absence of any effective attempt

by the Defendants to preserve and segregate relevant ESI, since the filing of this action in 1998.”

The district court made several findings of fact, including the following: 

(1) only in March 2004 did defendants prepare a litigation hold memorandum for

employees and MCCs in TennCare;

(2) even if defendants distributed the March 17, 2004 litigation hold memorandum,

it was not effectively implemented;5

 
No. 07-6373 John B., et al. v. Goetz, et al. Page 5

(3) under the state’s standard email system, emails older than 180 days automatically

roll off the system unless archived; 

(4) in some instances, state employees had not archived emails, and some employees

left employment without preserving relevant documents; 

(5) defendants did not tell the MCCs to preserve and produce responsive information

until November 2006; 

(6) the defendants’ survey of state record custodians did not comply with the January

14, 2007 order.

In its conclusions of law, the district court discussed the defendants’ duty to preserve ESI,

and concluded that defendants had a duty to preserve such information from the beginning of the

litigation. The court again noted that defendants did not create any meaningful litigation hold until

March 17, 2004, and, even then, did not implement that litigation hold memorandum effectively.

The court concluded that while officials and employees may have been reminded of the obligation

to preserve responsive documents, they were left “to decide on their own what to retain without

evidence of any written instruction or guidance from counsel on what is significant [or] material

information in this complex action.” Finally, after noting that other courts have sanctioned litigants

for failing to preserve ESI, the court reserved discussion of sanctions until “completion of the ESI

discovery ordered by the Court.”

In its accompanying order of October 10, 2007, the district court directed defendants to

provide complete responses to plaintiffs’ discovery requests for ESI with the agreed terms, for the

designated custodians, and for the time period of June 1, 2004 to the present. The court ordered that

the ESI include all metadata and all deleted information on any computer of any of the designated

custodians. Additionally, the order provided that plaintiffs’ computer expert was to “inspect the

Defendants’ computer system to assess whether any changes have been made to hinder the ESI

production.” The court also ordered defendants to implement the March 17, 2004 litigation hold

memorandum, to comply with the January 14, 2007 order, and to have designated custodians file

certifications regarding whether any ESI had been removed from any computer. Following entry

of the memorandum opinion and order, the court appointed Ronald J. Hedges, a former U.S.

magistrate for the District of New Jersey, to serve as monitor for the ESI discovery. 

Between October 15, 2007 and November 6, 2007, the parties filed a number of motions with

the district court pertaining to electronic discovery. On October 15, 2007, defendants moved for

reconsideration or clarification of the court’s October 10, 2007 order, arguing that the court

misunderstood the origin, purpose, and scope of the March 17, 2004 litigation hold memorandum.

Defendants contended that the memorandum was directed to team leaders of the “TennCare

Transformation Work Teams,” which no longer exist. Defendants further argued that

implementation of the March 17, 2004 memorandum would be redundant in light of other courtordered ESI preservation procedures and that implementation of the memorandum “may very well

be impossible.” 

On October 16, 2007 and October 17, 2007, plaintiffs filed a reply and supplemental reply

to defendants’ motion for reconsideration and clarification. Plaintiffs questioned defendants’

“belated” contention regarding the narrow scope of the March 17, 2004 litigation hold

memorandum. Plaintiffs also argued that defendants had taken inconsistent positions with respect

to that memorandum. On October 24, 2007, defendants filed a second motion for reconsideration

and clarification of the October 10, 2007 order. Among other things, defendants argued that the

redaction of certain confidential information from the ESI ordered produced was not possible. 
No. 07-6373 John B., et al. v. Goetz, et al. Page 6

On October 30, 2007, plaintiffs requested an order imposing sanctions on defendants for

failure to comply with the October 10, 2007 order. On November 6, 2007, plaintiffs also filed a

motion to compel defendants to comply with the October 10, 2007 order. Plaintiffs claimed that

“[d]efendants’ defiance of the Order threatens to make it impossible to retrieve deleted discovery

documents or assess the full extent of the State’s destruction of electronically stored information.”

In response to these motions, the district court issued the two discovery orders contested

here. The court issued the first order on November 15, 2007, denying in part and granting in part

defendants’ first motion for reconsideration and denying in full defendants’ second motion for

reconsideration. While the court clarified that implementation of the March 17, 2004 litigation hold

memorandum “is limited to a second review of the Defendants’ paper documents for relevance to

this action, production to the Plaintiffs and preservation,” the court denied the remainder of

defendants’ requests. Like the order of October 10, 2007, the November 15, 2007 order included

an inspection provision. The court ordered plaintiffs’ computer expert, Michael Tigh, and monitor

Ronald Hedges to inspect the state’s computer system and any computers of the 50 key custodians

that contain relevant information to “assess whether any production of information required by the

Consent Decree or previous Order[s] of the Court and the October 10, 2007 Order of the Court, has

been impaired or compromised or removed.” In addition, however, the November 15, 2007 order

further provided that Tigh and Hedges

shall make forensic copies of any computer inspected to ensure the preservation of

all existing electronically stored information (“ESI”). The United States Marshal or

his designated deputies shall accompany Mr. Tigh, his computer expert and Mr.

Hedges to ensure that this Order is fully executed. Mr. Hedges shall provide any

necessary guidance to the United States Marshal or his designee in executing this

Order. 

On November 16, 2007, defendants filed an emergency motion for clarification and/or

reconsideration of the November 15, 2007 order. Defendants contended that the November 15 order

was “extraordinarily intrusive and wholly unwarranted,” and requested clarification from the district

court that (1) any forensic copies will be taken into the custody of the United States Marshal and

retained under seal pending further order of the court, (2) Tigh will ensure that any forensic

examination be conducted in a manner that protects against disruption of regular state operations,

and (3) the personal computers and homes of relevant officials are not within the scope of the order.

On November 19, 2007, the district court issued the second order. The court granted in part

and denied in part defendants’ emergency motion. The court stated that it had “entered an earlier

Order [the January 14, 2007 order] predicated on the parties’ experts’ agreement to ensure

preservation of ESI in a less intrusive manner (Docket Entry No 789, Order), but the Defendants

breached that agreement and violated that Order.” The court found defendants’ suggestions that

Tigh and Hedges would be disruptive in making forensic copies “at best disingenuous.” The court

then supplemented the November 15 order by providing that the U.S. Marshal will assume custody

of the forensic images and that the court will maintain those images under seal pending further order.

For privately-owned computers not located on state property, the court provided that “the U.S.

Marshal or his designee shall arrange with state security personnel to go to the locations where such

computers are located and shall remove the computers to a state office where Mr. Tigh can image

them under the Monitor’s oversight.” In all other respects, the court’s order of November 15, 2007

was to be executed “forthwith.” 

Thereafter, defendants sought an emergency stay from the district court. The district court

denied defendants’ motion to stay on November 26, 2007. In denying the stay, the court issued a

memorandum opinion further explaining its bases for the November 15 and 19 orders. The court

explained that “[t]hese Orders were to protect against the Defendants’ destruction of responsive
No. 07-6373 John B., et al. v. Goetz, et al. Page 7

information in light of the Defendants’ persistent refusals to produce ESI in violation of the Court’s

orders.” The court stated its belief that “[d]efendants’ assertions on ESI discovery have been

inconsistent and inaccurate” and that the methods of forensic copying presented by the plaintiffs’

expert “are neither disruptive nor unnecessarily intrusive.” The court expressed that no threat of

irreparable harm existed to defendants because “the forensic imaging will occur under safeguards

that address the expressed legitimate concerns that the Defendants had.” 

On November 21, 2007, defendants filed an emergency motion with this court to stay the

November 15 and 19 orders. This court granted the stay on December 7, 2007. We now address

whether defendants are entitled to relief from the district court’s orders. 

II.

 Because certain aspects of the district court’s November 15 and 19 orders constitute a

demonstrable abuse of discretion, we grant defendants’ petition for mandamus. We set aside those

portions of the orders that call for the forensic imaging of all hard drives and other devices that

contain relevant ESI, including those provisions that require the U.S. Marshal or his designee to

accompany plaintiffs’ computer expert in the execution of the orders. We express no opinion with

respect to other provisions in the orders that can be executed in a manner consistent with this

opinion. 

 It is axiomatic that “[m]andamus relief is an extraordinary remedy, only infrequently utilized

by this court.” In re Perrigo Co., 128 F.3d 430, 435 (6th Cir. 1997). Mandamus from this court is

generally reserved for “questions of unusual importance necessary to the economical and efficient

administration of justice” or “important issues of first impression.” Id. (quoting EEOC v. K-Mart

Corp., 694 F.2d 1055, 1061 (6th Cir. 1982)). Indeed, for the writ to issue, petitioners must

demonstrate a “clear abuse of discretion” on the part of the district court. Mallard v. U.S. Dist.

Court, 490 U.S. 296, 309 (1989); In re King World Prods., Inc., 898 F.2d 56, 58 (6th Cir. 1990). 

In an effort to distinguish between “errors that are merely reversible and not subject to

mandamus, and those errors that are of such gravity that mandamus is proper,” In re Bendectin

Prods. Liab. Litig., 749 F.2d 300, 303 n.5 (6th Cir. 1984) (citation omitted), this court balances five

factors. We examine whether: (1) the party seeking the writ has no other adequate means, such as

direct appeal, to attain the relief desired; (2) the petitioner will be damaged or prejudiced in a way

not correctable on appeal; (3) the district court’s order is clearly erroneous as a matter of law; (4)

the district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal

rules; and (5) the district court’s order raises new and important problems, or issues of law of first

impression. In re Perrigo Co., 128 F.3d at 435 (citing In re Chimenti, 79 F.3d 534, 540 (6th Cir.

1996)). These factors need not all be met, and some factors will often be balanced in opposition to

each other. Id. Because the first, second, third, and fifth factors all weigh in favor of granting the

writ, this case presents the type of extraordinary circumstance that warrants mandamus relief. 

At the outset, it is clear that defendants have no other adequate means to attain the relief they

desire. This court has recognized that mandamus may be used as a “means of immediate appellate

review of orders compelling the disclosure of documents and information claimed to be protected

from disclosure by privilege or other interests in confidentiality.” United States ex rel. Pogue v.

Diabetes Treatment Centers of Am., Inc., 444 F.3d 462, 472 (6th Cir. 2006) (quoting In re Perrigo

Co., 128 F.3d at 436); see also In re Ford Motor Co., 345 F.3d 1315, 1316 (11th Cir. 2003) (noting

that mandamus has been found appropriate where discovery orders implicate privacy rights). The

orders at issue here compel the imaging and production of various state-owned and privately owned

computers and electronic devices, and that media will almost certainly contain confidential state or

private personal information that is wholly unrelated to the TennCare litigation. Plaintiffs are

correct that the discovery orders merely call for the imaging of the relevant media and that the
No. 07-6373 John B., et al. v. Goetz, et al. Page 8

6

These facts also give the district court’s orders some of the markings of immediate appealability articulated

in Perlman v. United States, 247 U.S. 7, 13 (1918). Under Perlman, “a discovery order directed at a disinterested third

party is treated as an immediately appealable final order because the third party presumably lacks a sufficient stake in

the proceeding to risk contempt by refusing compliance.” Church of Scientology of Cal. v. United States, 506 U.S. 9,

18 n.11 (1992). This court has noted that the Perlman exception “was designed to allow the holder of the privilege and

not the custodian of the documents to immediately appeal without being subject to contempt.” United States v. James

T. Barnes & Co., 758 F.2d 146, 146 (6th Cir. 1985). Because defendants in this case are record custodians, this case

does not fit precisely within the Perlman exception. And because our authority in mandamus is clear here, there is no

need to apply Perlman to the facts of this case. 

district court has yet to determine how to proceed with respect to the information contained on that

media. Nevertheless, the mere imaging of the media, in and of itself, raises privacy and

confidentiality concerns. Duplication, by its very nature, increases the risk of improper exposure,

whether purposeful or inadvertent. Further, counsel for plaintiffs conceded at oral argument that the

information contained on the hard drives, including information not related to this litigation, must

eventually be accessed to determine relevance.

Moreover, discovery orders such as those at issue here are generally not immediately

appealable under the final judgment rule or the collateral order doctrine. See United States ex rel.

Pogue, 444 F.3d at 471-72. This is so because a party “can obtain effective review of the district

court order by failing to comply with the order and perfecting an appeal should the district court

impose sanctions” or a contempt citation. Dow Chem. Co. v. Taylor, 519 F.2d 352, 355 (6th Cir.

1975); see also Coleman v. Am. Red Cross, 979 F.2d 1135, 1138 (6th Cir. 1992). Although it is true

that nothing prevents defendants in this case from disobeying the district court’s orders and incurring

a citation for contempt from which they could appeal, that approach would not afford defendants

an adequate means to attain relief. The orders at issue here extend not only to computers and

devices in the personal custody of defendants, but also to computers and devices in the custody of

individuals that are not party to this litigation. As a consequence, defendants’ refusal to obey the

district court’s orders will not preclude other individuals subject to the orders from complying.

Because defendants, as state officers, maintain an interest in preventing the imaging of all computers

and devices that contain confidential state information, an appeal from a contempt citation would

not suffice to protect this interest.6

 Accordingly, the first factor weighs in favor of mandamus relief.

With respect to the second mandamus factor, the record indicates that the district court’s

orders will cause defendants to suffer at least some damage or prejudice that cannot be corrected on

appeal. Contrary to the district court’s conclusion, these orders cannot be executed without some

disruption of state business. The orders require the plaintiffs’ computer expert, accompanied by a

deputy U.S. Marshal, to enter state agencies, and the offices and homes of state officials, to make

forensic copies of hard drives and other devices that contain information related to the TennCare

program. Leaving aside for the moment other federalism and comity concerns implicated by the

orders, such procedures cannot be carried out without disrupting state business to some degree.

And, as discussed, the imaging of these computers and devices will result in the duplication of

confidential and private information unrelated to the TennCare litigation. This duplication

implicates significant privacy and confidentiality interests—regardless of whether the imaged media

are initially held under seal—and these interests cannot be fully protected ex post. For these reasons,

the second mandamus factor weighs in favor of granting the writ. 

Most importantly, the district court’s orders are clearly erroneous as a matter of law, thus

meeting the third mandamus factor. Although district courts generally maintain broad discretion in

matters of discovery, see Criss v. City of Kent, 867 F.2d 259, 261 (6th Cir. 1988), this court will find

an abuse of that discretion if “left with ‘a definite and firm conviction that the court below

committed a clear error of judgment.’” Bill Call Ford, Inc. v. Ford Motor Co., 48 F.3d 201, 209 (6th

Cir. 1995) (quoting Taylor v. U.S. Parole Comm’n, 734 F.2d 1152, 1155 (6th Cir. 1984)). The
No. 07-6373 John B., et al. v. Goetz, et al. Page 9

provisions in the orders that require the forensic imaging of all computers containing responsive ESI

constitute an abuse of discretion. 

 As a general matter, it is beyond question that a party to civil litigation has a duty to

preserve relevant information, including ESI, when that party “has notice that the evidence is

relevant to litigation or . . . should have known that the evidence may be relevant to future

litigation.” See Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001); see also

Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216-18 (S.D.N.Y. 2003); The Sedona Principles:

Best Practices, Recommendations & Principles for Addressing Electronic Document Production,

Second Edition 11, 28 (The Sedona Conference Working Group Series, 2007), available at

http://www. thesedonaconference.org/content/miscFiles/TSC_PRINCP_2nd_ed_607.pdf. It is the

responsibility of the parties to ensure that relevant ESI is preserved, and when that duty is breached,

a district court may exercise its authority to impose appropriate discovery sanctions. See Fed. R.

Civ. P. 37(b), (e); The Sedona Principles, supra, at 70 (noting that sanctions should be considered

only if the court finds a clear duty to preserve, a culpable failure to preserve and produce relevant

ESI, and a reasonable probability of material prejudice to the adverse party). 

There is less clarity, however, surrounding the question of a district court’s authority to

compel the forensic imaging and production of computer hard drives as a means by which to

preserve relevant electronic evidence. Because litigants are generally responsible for preserving

relevant information on their own, such procedures, if at all appropriate, should be employed in a

very limited set of circumstances. Cf. The Sedona Principles, supra, at 33 (noting that, because all

litigants are obligated to preserve relevant information in their possession, preservation orders

generally must be premised on a demonstration that a real danger of evidence destruction exists, a

lack of any other available remedy, and a showing that the preservation order is an appropriate

exercise of the court’s discretion). In this case, the district court ordered the forensic imaging

predominantly for preservation purposes, explaining that “[t]hese Orders were to protect against the

Defendants’ destruction of responsive information in light of the Defendants’ persistent refusals to

produce ESI in violation of the Court’s orders.” In so doing, the district court committed a clear

error in judgment. 

To be sure, forensic imaging is not uncommon in the course of civil discovery. See Balboa

Threadworks, Inc. v. Stucky, No. 05-1157-JTM-DWB, 2006 WL 763668, at *3 (D. Kan. March 24,

2006). A party may choose on its own to preserve information through forensic imaging, and

district courts have, for various reasons, compelled the forensic imaging and production of opposing

parties’ computers. See, e.g., Ameriwood Indus., Inc. v. Liberman, No. 4:06CV524-DJS, 2006 WL

3825291, at *3-*6 (E.D. Mo. Dec. 27, 2006), amended by 2007 WL 685623 (E.D. Mo. Feb. 23,

2007); Cenveo Corp. v. Slater, No. 06-CV-2632, 2007 WL 442387, at *1-*3 (E.D. Pa. Jan. 31,

2007); Frees, Inc. v. McMillian, No. 05-1979, 2007 WL 184889, at *2 (W.D. La. Jan. 22, 2007).

Nevertheless, “[c]ourts have been cautious in requiring the mirror imaging of computers where the

request is extremely broad in nature and the connection between the computers and the claims in the

lawsuit are unduly vague or unsubstantiated in nature.” Balboa Threadworks, 2006 WL 763668,

at *3; see also Balfour Beatty Rail, Inc. v. Vaccarello, No. 3:06-CV-551-J-20MCR, 2007 WL

169628, at *2-*3 (M.D. Fla. Jan. 18, 2007); Diepenhorst v. City of Battle Creek, No. 1:05-CV-734,

2006 WL 1851243, at *2-*4 (W.D. Mich. June 30, 2006). As the Tenth Circuit has noted, albeit in

an unpublished opinion, mere skepticism that an opposing party has not produced all relevant

information is not sufficient to warrant drastic electronic discovery measures. See McCurdy Group,

LLC v. Am. Biomedical Group, Inc., 9 F. App’x 822, 831 (10th Cir. 2001). And the Sedona

Principles urge general caution with respect to forensic imaging in civil discovery: 

Civil litigation should not be approached as if information systems were crime

scenes that justify forensic investigation at every opportunity to identify and preserve

every detail. . . . [M]aking forensic image backups of computers is only the first step
No. 07-6373 John B., et al. v. Goetz, et al. Page 10

of an expensive, complex, and difficult process of data analysis that can divert

litigation into side issues and satellite disputes involving the interpretation of

potentially ambiguous forensic evidence. 

The Sedona Principles, supra, at 34, 47. Thus, even if acceptable as a means to preserve electronic

evidence, compelled forensic imaging is not appropriate in all cases, and courts must consider the

significant interests implicated by forensic imaging before ordering such procedures. Cf. Fed. R.

Civ. P. 34(a) Advisory Committee Note (2006) (“Courts should guard against undue intrusiveness

resulting from inspecting or testing [electronic information] systems.”). 

The district court’s compelled forensic imaging orders here fail to account properly for the

significant privacy and confidentiality concerns present in this case. The district court has ordered

plaintiffs’ computer expert, accompanied by deputy U.S. Marshals, to enter state agencies, and the

offices and homes of state officials, to make forensic images of hard drives and other devices,

whether state-owned or privately owned, that contain information relevant to the instant litigation.

As discussed, the media at issue will almost certainly contain confidential state or private personal

information that is wholly unrelated to the litigation. Although the risk of improperly exposing such

information, standing alone, might not preclude the employment of forensic imaging in all cases,

the forensic imaging must be premised on an interest significant enough to override that risk. Such

an interest is not demonstrably present in this case. 

In its memorandum opinion of October 9, 2007, the district court explained that it issued the

contested orders because it believed that defendants had failed to comply with various discovery

orders and had not properly preserved relevant ESI throughout the course of this litigation. The

record is not sufficient for this court to question those conclusions. Even so, the record lacks

evidence that defendants have intentionally destroyed relevant ESI in the past, and nothing in the

record indicates that defendants are unwilling, or will refuse, to preserve and produce all relevant

ESI in the future. Furthermore, forensic imaging is not the only available means by which the

district court may respond to what it perceives to be discovery misconduct. The district court

maintains authority to impose sanctions for discovery violations under the federal rules and pursuant

to its inherent powers. Although we take no position regarding the propriety of sanctions in this

case, such measures can be less intrusive than forensic imaging, and it is not apparent from the

record that the district court has exercised its sanctioning authority. In fact, the district court

expressly reserved discussion of sanctions in its October 9, 2007 opinion. 

Aside from these privacy and confidentiality considerations, this case raises other obvious

issues that counsel against the forensic imaging procedures ordered by the district court. As

directives to state officials, these orders implicate federalism and comity considerations not present

in typical civil litigation. Many of the computers subject to the orders are in the custody of high

ranking state officials, and these computers will contain information related to confidential state

matters. Further, the orders call for federal law enforcement officers to accompany plaintiffs’

computer expert into state agencies—and, in some cases, the homes and offices of state officials—to

effect the imaging. These procedures clearly do not take adequate account of federalism and comity

considerations. If the use of federal law enforcement officers in matters of civil discovery is proper

under some circumstances, those circumstances are not present here. 

Certainly, state officials are not immune from complying with federal discovery mandates.

However, where less intrusive means are available to address the perceived discovery violations of

state parties, those means should be employed before resorting to inherently intrusive measures like

forensic imaging, especially in cases where there is no evidence of purposeful or intentional

destruction of relevant ESI. In light of the significant confidentiality and federalism concerns

present in this case, the district court’s forensic imaging orders constitute the type of “demonstrable
No. 07-6373 John B., et al. v. Goetz, et al. Page 11

abuse of discretion” that warrants mandamus relief. See In re Wilkinson, 137 F.3d 911, 914 (6th Cir.

1998). The third mandamus factor thus weighs in favor of granting the writ. 

Finally, the fifth mandamus factor weighs in favor of mandamus relief. This case involves

important issues related to electronic discovery and forensic imaging. It also raises issues of

federalism and comity that are not present in typical civil litigation. Addressing these issues now

serves to provide district courts with guidance on such matters in the future. 

For the foregoing reasons, we grant defendants’ petition for mandamus and set aside those

provisions of the district court’s November 15, 2007 and November 19, 2007 orders that require the

forensic imaging of state-owned and privately owned computers, including the provisions that

require the U.S. Marshal or his designee to assist plaintiffs’ computer expert in the execution of the

orders. We recognize that the two contested orders also contain provisions related to the inspection

of defendants’ computer system. We decline to address those provisions to the extent that those

provisions can be executed in a manner consistent with this opinion and without undue intrusion.
No. 07-6373 John B., et al. v. Goetz, et al. Page 12

______________________

CONCURRING ______________________

R. GUY COLE, JR., Circuit Judge, concurring. I concur in the majority’s thoughtful opinion

and write separately only to recognize the district court’s efforts to resolve this extensive and

complex proceeding, which has been made more difficult by Defendants’ repeated delays and the

institutional inefficiencies that plague the TennCare system. 

This case has been pending for ten years. Since spring 2006 alone, the district court has

overseen a discovery process that has included nine hearings and conferences, generating a record

that spans more than 1,700 transcript pages. After finding that Defendants repeatedly violated their

agreements set forth in the Consent Decree, breached their agreement with Plaintiffs regarding the

dates for ESI discovery, and ignored the district court’s directions to provide ESI to Plaintiffs, the

court understandably concluded that extraordinary action was necessary to preserve potentially

relevant ESI. And I would ordinarily defer to the discretion of the district court, which has had the

arduous job of managing this difficult case – along with another branch of TennCare litigation – for

the past decade. 

This case is unique, however, in that the court’s order includes the forensic imaging of

computers in the custody of individuals not party to this matter, and that the order may lead to

confrontations between federal marshals and state officials. Under these circumstances, I agree with

the majority that, without evidence that Defendants intentionally destroyed relevant ESI in the past

or that they are affirmatively unwilling to preserve all relevant ESI in the future, the district court

should first employ less intrusive means to address the perceived discovery violations. 

It is clear that the district court’s focus has been to assist the parties in forging a solution that

would ensure that Tennessee’s children receive the benefits owed to them under the Consent Decree

and federal law. Defendants’ continual noncompliance and acrimonious litigation practice has

unfortunately steered this case away from such goal, with the costs borne by the judicial system and

the citizens of Tennessee. The district court has thus far reserved the exercise of its wide discretion

to hold Defendants in contempt or to impose monetary sanctions. If the district court resorts to such

measures and Defendants nevertheless continue to disregard their undisputed duty to preserve and

produce relevant ESI, the preservation order at issue in this case, in my view, may no longer be

considered inappropriate.