Obtaining the Right to Search the Other Side's Computers and Cell Phones in Business and Employment Litigation Through Proof of Discovery Irregularities

Parties in business litigation sometimes demand to search the other side’s computers, cell phones and other electronic storage devices or have their expert’s review them. However, absent proving that a party in litigation engaged in discovery irregularities, such as hiding documents from discovery or lack the available expertise to produce computer stored information, the opposing party is not entitled to require hiring its own expert to search the other side’s computers and electronic storage devices. In Re Ford Motor Co., 345 F.3d 1315, 1317 (11th Cir. 2003); McCurdy Group, LLC v. American Biomedical Group, Inc., 9 Fed. Appx. 822, 831 (10th Cir. 2001)

Inspection of a party’s personal computer, cell phones and other computer storage by an expert retained by the other side in litigation is not automatic or routine. Rule 34(a) requires that Plaintiffs search their records, including those stored electronically, to produce the required, relevant data. It “does not give the requesting party the right to conduct the actual search.” In Re Ford Motor Co., 345 F.3d at 1317; see also Fed. R. Civ. P. 34 Advisory Committee Notes on 2006 Amendment (“the addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party’s electronic information system . . . Courts should guard against undue intrusiveness resulting from inspecting or testing such systems”).

A number of cases have addressed this issue. In In re Ford Motor Co., the plaintiff filed a motion to compel seeking direct access to defendant's computer databases in order to conduct its own searches. 45 F.3d at 1316. The Eleventh Circuit found that while the parties agreed that the information sought was discoverable, the parties disagreed on the need for direct access to computers. Id. The court held that “Rule 34(a) does not grant unrestricted, direct access to a respondent's database compilations.... Like the other discovery rules, Rule 34(a) allows the responding party to search his records to produce the required, relevant data. Rule 34(a) does not give the requesting party the right to conduct the actual search.” Id. at 1317.

The court in In re Ford Motor Co. then limited the circumstances in which the requesting party could itself be allowed to check such a data compilation to situations involving “improper conduct on the part of the responding party” or “a factual finding of some non-compliance with discovery rules” by the responding party. Id. Thus, a motion to compel an expert search of the other party’s data should only be granted if the movant “can actually prove that [Plaintiffs] have concealed information or lack the expertise necessary to search and retrieve all relevant data.” Mirbeau of Geneva Lake LLC v. City of Lake Geneva, No. 08-cv-693, 2009 WL 3347101 (E.D. Wis. Oct. 15, 2009).

In McCurdy Group, the Tenth Circuit affirmed the magistrate judge’s denial of a motion to compel production of computer disc drives. 9 Fed. Appx. at 831. In that case, the defendant had requested the computer drives of the plaintiff so that it could conduct its own search for relevant documents. Id. The plaintiff objected because the request was overly broad and unduly burdensome, would involve disclosure of attorney-client communications and other communications unrelated to the lawsuit. Id. The plaintiff offered to produce the disc drives to a third-party expert for inspection, but the defendant refused. Id. The Tenth Circuit affirmed the denial of the motion to compel stating that the defendant’s skepticism about the completeness of the prior discovery responses was “not sufficient to warrant such a drastic discovery measure.” Id.

Having a forensic computer expert retained by party whose data is sought perform the work to image and search that party’s hard drives using a protocol developed by the other side and its experts has been approved by judges in Chicago’s federal court. See e.g. Dorel Juvenile Group, Inc. v. DiMartinis, No. 06-cv-1295, 2006 WL 3240116 at *1 (Sept. 29, 2006) (Hamilton, J.). In Webb v. CBS Broadcasting, Inc., No. 08-cv-6241, 2011 WL 111615 at * 12 (Jan. 13, 2011) the Court found that the defendant had “shown no need for a copy of the hard drives of the computers of [Plaintiffs] which . . . would likely contain vast amounts of irrelevant material.Id. (emphasis added).

Courts also reject the argument that a party’s personal devices are evidence. See e.g., Powers v. Thomas M. Cooley Law School, No. 5:05-CV-117, 2006 WL 2711512 at *4 (W.D. Mich. Sept. 21, 2006) (“In most cases, the computer itself is not evidence. It is merely the instrument for creating evidence (like a typewriter) or the means of storing it (like a file cabinet)”). Thus, the mere fact that a party may have used some personal devices or personal e-mail accounts on an infrequent basis in their work does not render the devices themselves discoverable.

Simply because a person is a party to a lawsuit does not allow the other side or some some third-party expert to root though a litigant’s most personal files. This is akin to allowing a party to search the file cabinets in the opposing party’s house, even though that party has agreed to look through and produce any responsive documents in those cabinets. Searches by an opposing party through the other side’s data is only permitted of discovery irregularties.

In Lifetouch National School Studios, Inc. v. Moss-Williams, the defendant transferred data onto a thumb drive and then smashed the thumb drive with a hammer. No. C10-05297, 2013 U.S. Dist. LEXIS 148360 at *1 (N.D. Cal. Oct. 15, 2013). Because there was clear evidence that the defendant had misappropriated evidence and then destroyed evidence of the misappropriation, the court ordered imaging of her new employer’s computer to determine if the defendant transferred any misappropriated data to her new employer. Id. at *5.

In United Factory Furniture Corp. v. Alterwitz, the plaintiff presented evidence that after being fired, the defendant former employees accessed the plaintiff’s computer systems and tampered with or deleted files. No. 12-cv-00059, 2012 WL 1155741 at *2 (D.Nev. Apr. 6, 2012). Because the court was presented with facts establishing that the defendants were destroying evidence, it ordered imaging of the defendants’ hard drives to ensure the preservation of evidence. Id. at **4-5.

In Genworth Financial Wealth Management, Inc. v. McMullan, the defendant admitted that he spoliated evidence by throwing away a computer he had used to access the plaintiff’s data. 267 F.R.D. 443, 447-48 (D. Conn. 2010). Under these circumstances, the court found it proper to order imaging of the defendant’s other personal devices to determine if any evidence had been transferred to those devices from the device he threw away. Id.

In Ameriwood Industries, Inc. v. Liberman, the plaintiff presented evidence that the defendant had deleted or otherwise withheld from production several key e-mails. No. 06-CV-524, 2006 WL 3825291 at *3 (E.D. Mo. Dec. 27, 2006). Because the plaintiff established that the defendant spoliated and withheld evidence, the court concluded that it was proper to order a forensic search to determine whether other deleted or withheld e-mails could be found on the defendant’s computers. Id.

In Orrell v. Motorcarparts of America, Inc., the plaintiff transferred files from her work computer to her home computer and then had an IT consultant “wipe” the files from her work computer. No. 06-CV-418, 2007 WL 4287750 at *2 (W.D.N.C. Dec. 5, 2007). Because the defendant had no other means to recover the “wiped” files, the court ordered a forensic imaging and search of the plaintiff’s personal computer to determine if the transferred files could be found. Id. at *8.

In Brocade Communications Systems, Inc. v. A10 Networks, Inc., the plaintiff presented evidence that the defendant transferred the plaintiff’s proprietary information to a personal laptop. No 10-CV-03428, 2012 WL 70428 at *2 (N.D. Cal. Jan. 9, 2012). The defendant later used this information to compete with the defendant and also “recycled” his hard drive during the pendency of the litigation. Id. Since there was evidence that the defendant misappropriated trade secrets and spoliated evidence, the court determined that it was proper to image the defendant’s other hard drives to determine if he had transferred other data to his other personal devices. Id.

In sum, a party seeking to search the other side’s computers must demonstrate that it has good grounds for entry of an order allowing its expert tosearch the other side’s personal devices with an intrusive search.

Lubin Austermuehle, P.C.’s Chicago business litigation attorneys maintain offices in Chicago, Evanston and Elmhurst, Illinois. We work with clients throughout the State of Illinois, including the Chicago area and Cook County, as well as in Wisconsin and Indiana. To set up a consultation with a business dispute lawyer in Chicago, contact us by email, at 833-306-4933, or locally at 630-333-0333.

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