Forensic Analysis of a Personal Laptop is Intrusive Discovery

A plaintiff brought a lawsuit against a hotel for “hidden” Environmental Fees of $2.99 per night that turned into a reservation with motions to compel ESI in native file format. Kratzer v Scott Hotel Group, LLC, 2019 U.S. Dist, LEXIS 230063 (S.D. Ind., Apr. 23, 2019).

The original discovery dispute included the plaintiff preparing a narrative of events in a Word document. Counsel represented to the court that there was only one version of the native file. As such, when there were questions over a produced PDF version from a specific date and time, the Court did not order production of the Word document, because the attorneys represented it was a “living” native file and constantly being updated.

Much to what I am sure was to the lawyer’s horror, that was not the case. There were native versions that had been preserved and included on the plaintiff’s privilege log. The Court issued a show cause order as to why the plaintiff’s should not be sanctioned.

Discovery then went forward as expected, with confirmation emails from the hotel ordered for production. Then came an inspection demand for a forensic investigation of the plaintiff’s home computer.

The defendants reasoned that the forensic inspection was necessary to find the native versions of the confirmation emails and the narrative prepared by the plaintiff. The Court did not agree. The Court denied that specific motion to compel, because the defendants failed to show the plaintiff’s personal computer was reasonably necessary to find information at issue in the lawsuit.

There are many case examples where Courts put the breaks on an adverse party conducting a forensic investigation of a party’s personal laptop. Many judges react like they ask being asked to grant a motion for a root canal in court. The same can be said for forensic investigation of a personal computers. There should be good cause and privacy protections in place before granting allowing such an investigation.