A Plaintiff sought a writ of mandamus after a trial court ordered the production of the Plaintiff’s personal computer and email accounts. The Court of Appeals of Texas granted the writ. In re Jordan, 364 S.W.3d 425 (Tex. App. Dallas 2012).
The case involved claims of a sexually hostile work environment and wrongful termination.
The basic factual allegations involved the Plaintiff’s seeing sexually graphic content on a work computer that was offensive to her. The Plaintiff prepared a memorandum on the incident on her work computer for her supervisor. In re Jordan, at *1.
The Plaintiff stated at her deposition she had never viewed pornography before the work incident. In re Jordan, at *1.
The Defendant generally requested the production of the Plaintiff’s home computer. Id. The Trial Court signed an order permitting the Defendant’s “forensic computer examiner” to access the Plaintiff’s personal computer for the following:
1) Determine Plaintiff’s Internet history for content of a pornographic or sexual nature from 2009 to present;
2) Examine relator’s email accounts to see if any emails with pornographic or sexual content were sent or received from 2009 to present; and
3) Attempt to locate the memoranda relator claimed she prepared on her work computer.
In re Jordan, at *2.
Texas law requires a party seeking another party’s personal computer to “make a specific request for [the] information and specify the form of production.” In re Jordan, at *2, citing In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009).
The Court of Appeals explained the following defects of the Defendant’s discovery requests:
Here, Gajekse’s written requests merely asked for the hard drives of relator’s computers without informing relator of the exact nature of the information sought.n2 Gajekse also failed to demonstrate “the particular characteristics of the electronic storage devices involved, the familiarity of its experts with those characteristics, or a reasonable likelihood that the proposed search methodology would yield the information sought.” In re Weekley Homes, L.P., at 311. In fact, the record before us does not reflect any attempt by Gajekse to explain its search methodology or its expert’s credentials.
In re Jordan, at *2-3.
Furthermore, trial courts should consider issuing a protective order when a personal computer is searched, especially in cases where the requesting party employs the person conducting the search. Id.
While the trial court did attempt to limit the scope of the computer search, there was nothing in the record that showed a protective order was considered. In re Jordan, at *4.
The Court of Appeals held the trial court abused its discretion in its order to search the Plaintiff’s personal computer. In re Jordan, at *4.
Bow Tie Thoughts
The Court of Appeals was right to grant mandamus relief.
It is said the power to tax is the power to destroy. A corollary is the power to conduct an unrestricted search of an opposing party’s personal computer is the power to harass, embarrass and destroy. Despite the fact computers literally surround us, courts are still developing the legal safe guards to prohibit a digital vivisection of individuals in litigation.
With the current case, the Plaintiff is effectively being challenged to prove a negative (that she never saw pornography before the lawsuit) as the justification to search her personal computer and thus discredit her deposition testimony.
While truthfulness is always an issue in a lawsuit, compelled searches of an opposing party’s computer normally require some showing of discovery irregularities such as production gaps or IP/trade secret allegations.
As to the ancillary issue of finding the memo reporting the incident, the more logical place to search is the Plaintiff’s work computer (in theory under the control of the Defendant) or her supervisor’s computer if the memo was emailed to the supervisor.
There are several options if a search needs to be conducted to contradict the Plaintiff’s deposition testimony, including:
1) Court appointed expert conducts search of Plaintiff’s computer for specifically identified content. The Plaintiff has the right to review the findings for any privileged information before it is produced to the requesting party
2) A Court appointed or an expert employed by the Plaintiff uses a device such as the Paraben Porn Detection Stick to scan the computer for pornographic content. The Paraben Porn Detection Stick searches images based on the amount of flesh visible in images and generates a report of suspected pornographic images (there is more to the technology, but that is my understanding). The cost for the device is $99.
Given the amount of Supreme Court case law on the subject of pornography, the Court and parties also have the challenge of defining what to actually search for on the computer at issue. To meet the requirement that there is a reasonable likelihood that the proposed search methodology would yield the information sought, the search cannot be Justice Stewart’s “I know it when I see it” standard from the concurring opinion in Jacobellis v. Ohio, 378 U.S. 184, 197 (U.S. 1964). Such a meet and confer might address what areas of the computer will be searched, file types and perhaps specifically determining a percentage of visible flesh to meet the legal definition of “pornography.”
Courts should guard against a party searching an opposing party’s computers at will. To be blunt, there are gigabytes of non-responsive and privileged information on computers, such as tax information, banking data and other data completely not relevant to a lawsuit.
When searches must be conducted of an opposing party’s personal computer, there should be protective orders, clear and specific requests for the information sought to deter digital fishing expeditions, a selection process for who is to search the information and an opportunity for the responding party to conduct a privilege review.
(Disclosure: I have many friends at Paraben and will be speaking at their 2012 conference).
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 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.