eDiscovery Daily Blog

• September 27, 2013

 

In NOLA Spice Designs, LLC v. Haydel Enters., Inc., No. 12-2515 (E.D. La. Aug. 2, 2013), Louisiana Magistrate Judge Joseph C. Wilkinson, Jr. denied a motion to compel a plaintiff and its principal (a third-party defendant) to produce their passwords and usernames for all websites with potentially relevant information and to compel a forensic examination of its computers.

In this trademark infringement case under the Lanham Act, the defendant moved to compel the plaintiff and its principal to produce “‘passwords and user names to all online websites related to the issues in this litigation, including social media, weblogs, financial information and records,’” and to “submit their computers to an exhaustive forensic examination . . . with ‘access to full electronic content [including] online pages and bank accounts, including without limitation, online postings, weblogs, and financial accounts, for a time period from October 13, 2009 to the present, including deleted and archived content.”  

The plaintiff and its principal refused to disclose passwords and user names based on “privacy and confidentiality objections.”  While acknowledging that the defendant is correct in stating that “there is no protectable privacy or confidentiality interest in material posted or published on social media”, Judge Wilkinson noted that the defendant’s citation and arguments “miss the point”.  Judge Wilkinson stated that “ultra-broad request for computer passwords and user names poses privacy and confidentiality concerns that go far beyond published social media matters and would permit Haydel to roam freely through all manner of personal and financial data in cyberspace pertaining to” the plaintiff and its principal.

With regard to the request for forensic examination of the computers of the plaintiff and its principal, Judge Wilkinson acknowledged that such an examination is “within the scope of ESI discovery contemplated by Fed. R. Civ. P. 34(a)(1)(A).”  However, “such requests are also subject to the proportionality limitations applicable to all discovery under Rule 26(b)(2)(C), including the prohibition of discovery that is unreasonably cumulative or duplicative or that could be obtained from some more convenient, less burdensome or less expensive source, or the benefit of which is outweighed by its burden or expense, when considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake and the importance of the proposed discovery to those issues.”  {emphasis added}

While “restrained and orderly computer forensic examinations” have been permitted when it’s been demonstrated that the producing party “has defaulted in its discovery obligations by unwillingness or failure to produce relevant information by more conventional means”, a party’s “mere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures”, added Judge Wilkinson.

As a result, Judge Wilkinson ruled that “this overly broad request seeking electronically stored information (ESI), which far exceeds the proportionality limits imposed by Fed. R. Civ. P. 26(b)(2)(C) – expressly made applicable to ESI by Rule 26(b)(2)(B) – is denied.” {emphasis added}

So, what do you think?  Did the defendant’s request exceed proportionality limits?   Please share any comments you might have or if you’d like to know more about a particular topic.

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