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Parties who seek the forensic examination of a personal electronic device (like a computer, tablet or mobile phone) during business litigation need to address the other party’s privacy concerns. A forensic image, otherwise known as a “mirror image” will “replicate bit for bit sector for sector, all allocated and unallocated space, including slack space, on a computer hard drive.” Bennett v. Martin, 186 Ohio App.3d 412, 928 N.E.2d 763 (10th District, 2009). A mirror image “contains all the information in the computer, including embedded, residual, and deleted data.” Bennett v. Martin. Courts balance whether the need for forensic examination is proportional to the needs of the case or to the other party’s privacy concerns. Ramos v. Hopele of Ft. Lauderdale, Ltd. Liab. Co., No. 17-cv-62100, 2018 WL 1383188 (S.D. Fla. 2018). Peter Mavrick is a Fort Lauderdale business litigation lawyer, and also represents clients in business litigation in Miami, Boca Raton, and Palm Beach.  The Mavrick Law Firm represents clients in breach of contract litigation, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Electronically stored information (ESI) is discoverable under Rule 34(a) of the Federal Rules of Civil Procedure. Deleted computer files, whether e-mails or otherwise, are likewise discoverable. Bank of Mongolia v. M&P Global Fin. Servs., 258 F.R.D. 514 (S.D. Fla. 2009). “Discovery should ordinarily be allowed under the concept of relevancy unless it is clear that the information sought has no possible bearing on the subject matter of the action.” Devries v. Morgan Stanley & Co. LLC, No. 12-cv-81223, 2015 WL 1623928 (S.D. Fla. 2015). Florida courts have “long held that relevance for discovery purposes is much broader than relevance for trial purposes.” Dunkin’ Donuts, Inc. v. Mary’s Donuts, Inc., No. 01-cv-0393, 2001 WL 34079319 (S.D. Fla. 2001). Parties will often resist conducting a search of computer systems for the information requested during business litigation. The party producing documents, however, has an obligation to search available systems for the information demand. Wynmoor Cmty. Council, Inc. v. QBE Ins. Corp., 280 F.R.D. 681 (S.D. Fla. 2012).

In the case of Wynmoor Cmty. Council, Inc. v. QBE Ins. Corp., plaintiffs served their response to a request for production of documents nearly three months after they were served. Before the responses were served, plaintiffs sent correspondence to Defendant claiming to be “diligently working on the electronic material” and requested more time. Defendant later learned that no effort was made to retrieve any ESI from plaintiffs’ computers. Plaintiffs’ response objected to every request for electronic discovery as unreasonably duplicative as well as expensive and burdensome “taking into account the needs of the case, the amount in controversy, the Plaintiff’s resources as non-profit condominium associations and the lack of value of the electronic discovery in resolving the issues.” The trial court found that the plaintiffs’ response to defendant’s request for production was untimely. Courts will take into account the fact that a party in business litigation took no action to locate the requested ESI until faced with a motion to compel. The trial court held that plaintiffs did not demonstrate good cause for their late response, so their objections were deemed waived. The trial court found that even if plaintiffs’ objections were timely, their objections that the ESI was duplicative and unduly burdensome in light of the needs of the case was unsupported by the evidence presented. Plaintiffs testified that not all of its ESI would necessarily be found in hard copy format. Plaintiffs had no policy in place for generating hard copies of e-mails between employees, or any e-mail policy whatsoever. Because there was evidence of an unusually large amount of document shredding, some of which may have been unauthorized by plaintiffs’ CFO, there was at least the possibility that hard copy evidence germane to the lawsuit may have been destroyed. The evidence, therefore, would not otherwise be available to the Defendant absent access to ESI stored in Plaintiffs’ computer systems.

Defendant requested the court order forensic imaging of plaintiffs’ computers. Before compelling such imaging during business litigation, the court must weigh inherent privacy concerns against its utility. Courts should consider “whether the responding party has withheld requested information, whether the responding party is unable or unwilling to search for the requested information, and the extent to which the responding party has complied with discovery requests.” Bennett v. Martin. supra. When a requesting party demonstrates the responding party’s failure to produce requested information, the scales tip in favor of compelling forensic imaging.

The trial court held that plaintiffs were either unwilling or unable to conduct a search of their computer systems for documents responsive to defendant’s discovery requests. The trial court found that a forensic examination of plaintiffs’ computers was warranted. Defendant was entitled to employ the discovery process to assist in preparing its defense. The trial court employed a collection and review protocol for the forensic examination to minimize the potential intrusiveness and excessive costs of the examination.

Peter Mavrick is a Fort Lauderdale business litigation attorney who also practices business litigation in Miami, Boca Raton, and Palm Beach.  This article does not serve as a substitute for legal advice tailored to a particular situation.

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