In a wrongful death case, the Plaintiffs sought “any and all” computer hard drives and cell phones from the Defendant within 24 hours of the incident in the lawsuit to the “present.” Holland v. Barfield, 35 So. 3d 953 (Fla. Dist. Ct. App. 5th Dist. 2010).
A Grand Fishing Expedition
The Plaintiffs brought a motion to compel the production of the Defendant’s hard drive and cell phone to show all communications made by text messages and on social networking sites. Holland, at *2.
The trial court GRANTED the motion to compel. Holland, at *2-3.
The Plaintiff did agree after the court order to have a protective order and confidentiality agreement. Holland, at *3.
Nowhere was the Defendant allowed to review the data before it was produced to the Plaintiff. Holland, at *3.
Your Life in the Data Stream
The Defendant argued on appeal that the Plaintiffs could review every byte of the Defendant’s data in violation of her privacy rights, plus the attorney-client privilege and work product doctrine. Holland, at *3.
Email messages. Credit card numbers. Bank statements. Personal photos. Medical information.
All available for the opposing party to review.
Such a practice would amount to a court ordered vivisection of a party’s privacy rights.
Finally, the Defendant argued the order would be unduly burdensome because it would deprive the Defendant (a college student) of her only phone and computer for an unknown amount of time, impacting her studies. Holland, at *4.
The Plaintiff countered that because the Defendant “thwarted” discovery by not producing anything, they had the right to access the computer without the Defendant reviewing any data before production. Holland, at *4.
Setting the Fishing Limit
Florida law allows for the direct examination of computers under specific circumstances and procedures, because an opposing party’s “…unlimited access to anything on the computer would constitute irreparable harm, because it would expose confidential, privileged information to the opposing party.” Holland, at *6.
A requesting party must prove the following to gain access to an opponent’s computer:
(1) Evidence of any destruction of evidence or thwarting of discovery;
(2) A likelihood the information exists on the devices; and
(3) No less intrusive means exists of obtaining the information.
Holland, at *6.
The Court held there was no evidence that discovery thwarted or evidence was destroyed . Holland, at *7. Moreover, the discovery requests were not for specific data on the computer or phone, but the devices themselves. Holland, at *7.
The Plaintiffs sought the computer and cell phone SIM card as a “back-up” to the information requested in discovery. Holland, at *7. This showed a less intrusive means had already been agreed to and compromised by the parties in accessing the information. Id.
The Court of Appeals found that the trial court order compelling the examination of the Defendant’s hard drive and cell phone SIM card caused irreparable harm, because it failed to protect against the disclosure of confidential or privileged information. Holland, at *8-9. As such, the order was quashed.
As the Court of Appeals explained, in part:
The unlimited breadth of the trial court’s order allows Respondent to review, without limit or time frame, all of the information on Petitioner’s computer and mobile phone SIM card without regard to her constitutional right of privacy and the right against self-incrimination or privileges, including attorney-client, work product.
Holland, at *7-8.
Bow Tie Thoughts
The Courts are the guardians against a party’s personal data being forensically collected and reviewed in total disregard of privacy interests. In this case, the Court of Appeals ended fishing season on a matter of principle, after the parties had compromised on the discovery of the relevant electronically stored information.
The general practice when a personal computer needs to be forensically imaged, it is done by a neutral third-party, not the moving party’s expert. Moreover, the producing party has an opportunity to review the information for privilege, so only what is responsive and non-privileged is produced.
For more on cases involving the imaging of hard drives, please check out Compelling Production of Hard Drives & Metadata to Show Time Worked, The Express Way to Your Hard Drive and How to Get a Judge to Overcome the Guilt of Ordering the Forensic Examination of a Personal Computer
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.