The Defendants in employment litigation sought the mirror imaging of the Plaintiff’s personal computers three years after she had been terminated. The crux of the eDiscovery centered on the former employee forwarding emails from her supervisors email to her personal account, which the Defendants claimed were lost by the Plaintiff. The Court denied the motion to compel. Downs v. Va. Health Sys., 2014 U.S. Dist. LEXIS 74415, 6-11 (W.D. Va. June 2, 2014).
Judge James G. Welsh did a very nice job of summarizing ESI relevant to a case, proportionality, and the rules for conducting forensic analysis on an opposing party’s hard drive. The Court held the following:
(1) Nothing in the record suggests any willful failure, fault or bad faith by the plaintiff on her discovery obligations that would justify the requested computer forensics examination;
(2) The “mirror-imaging” of the plaintiff’s family computers three years after her termination raises significant issues of confidentiality and privacy;
(3) There was no duty on the part of the plaintiff to preserve her family computers as evidence;
(4) Principles of proportionality direct that the requested discovery is not sufficiently important to warrant the potential burden or expense in this case; and
(5) On the current record that the defendants have failed to justify a broad, and frankly drastic, forensic computer examination of the plaintiff’s two family computers.
Downs, at *9-10, referencing McCurdy Group v. Am. Biomedical Group, Inc., 9 Fed. Appx. 822, 831 (10th Cir, 2001); see also Basile Baumann Prost Cole & Assocs., Inc. v. BBP & Assocs. LLC, 2013 U.S. Dist. LEXIS 51264, *8 (DMd. Apr. 9, 2013).
Bow Tie Thoughts
Conducting forensic analysis by an opposing party on personal computers is one of the most touchy subjects in eDiscovery. The United States Supreme Court drove home how much personal data can be on a smart phone, so that information only explodes on a personal computer. Tax records, vacation photos with children, and a host of other non-relevant or privileged information can be on a personal computer. The idea of a Court ordering the mirror imaging of personal computer by an opposing party is as invasive as ordering a physical examination of a party. It is not something done lightly.
I think it is part of a lawyer’s duty of competency to ensure relevant information on a client’s personal computers is preserved at the beginning of litigation. However, that does not mean that the entire contents would ever be produced, only what is relevant.
Targeted collections are one way to ensure ESI is preserved. There is also self-executing technology that can be used, as well as remote collections. I would avoid self-collection at all costs.
That being said, I would hold the line and fight against an opposing party that wanted to rummage through a personal hard drive without significant legal justification.
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.