eDiscovery Daily Blog

• July 14, 2014

 

Here’s an interesting case courtesy of Virginia Lawyer’s Weekly…

In Downs v. Virginia Health Systems, Civil No. 5:13cv00083, (W.D. Va. June 2, 2014), Virginia Magistrate Judge James G. Welsh, citing proportionality and privacy concerns, denied the defendant’s motion to compel the mirror imaging of the Plaintiff’s personal computers nearly three years after she had been terminated.

The plaintiff brought an employee discrimination case against the defendant following being terminated after nearly seventeen years of employment as an executive secretary.  Among the reasons the defendant gave to justify her discharge was that that she had accessed her supervisor’s e-mail account without authority (she disputed that the access was not authorized) and that she had similarly forwarded information from that account to her personal email accounts and her home computers without permission.

The plaintiff represented that she had deleted all material she sent to her home computers following her August 2011 termination; therefore, the defendant requested to have the plaintiff’s two family computers mirror-imaged “to ensure against any further spoliation or destruction of evidence”.  The plaintiff objected to that request as “overly broad, burdensome, ‘personally intrusive,’ and ‘would necessarily invade’ the attorney-client privilege”.  She also argued that the defendants’ in-house IT experts and its own computer logs and reports would provide the same information being requested by the defendant to be mirror-imaged.

Judge Welsh stated that “On its face, the discovery issue presented by the defendants’ request for an exhaustive forensic examination of the plaintiff’s computers is also directly within the scope of ESI discovery contemplated by the inspection, copying, testing and sampling provisions of Rule 34(a)(1)(A).”  Ultimately, however, he also stated as follows:

“Consideration of the defendants’ ESI motion in a manner consistent with the forgoing discovery rules, standards and principles, compels the following findings and conclusions:

(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.”

As a result, “even though the defendants have demonstrated a connection between the plaintiff’s two family computers and the issues this lawsuit”, Judge Welsh stated that “the court’s consideration of the several other relevant factors, including the proportionality balance required by Rule 26(b)(2), all weigh heavily against permitting the exhaustive and intrusive computer forensic examination the defendants seek” and denied the defendant’s motion to compel.

So, what do you think?  Should the drives have been imaged or did the defendant’s request fail the proportionality test?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.