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COMPUTER DISCOVERY:
YOUR HARD DRIVE IS FAIR GAME IN ANY LITIGATION
Introduction:
The next time you
are involved in litigation in which communication or documents are
relevant to the issues at bar your computer hard drive will be delivered
to an expert who will retrieve from it every e mail, every website,
every saved document you have ever opened or sent on that computer. Each
one.
The only exception
will be e mails and documents to and from your lawyer.
No matter how
private or personal. No matter how much you feel it is an invasion of
your privacy.
And if you erase
your hard drive or seek to erase parts of it, you will either be
unsuccessful or/and may face court ordered sanctions.
If you have old
computers in your closet, if you have given your computer to a family
member or friend or even donated it to some foundation, expect it to be
retrieved and investigated in the same way.
In the last fifteen
years an entire industry of experts has emerged to assist attorneys and
other investigators in analyzing computer hard drives and retrieving
even erased and deleted materials. As one told the writer, “If it was
ever in the computer, I can find it. Just give me enough time and money
and it will be on your desk.” He was right and dozens of documents,
deleted by our opponents, were not only retrieved, but the date of the
attempted deletions (after start of the litigation) carefully noted, to
their consternation and dismay.
This has radically
altered the world of litigation and the simple fact is that the majority
of cases not only utilize such evidence but more and more cases are
decided by such evidence.
And the collateral
damage can be extensive. Marriages destroyed, employees fired, ancillary
litigation erupting. While protective orders can be sought, such
information quite often must be shared among the parties delivering the
materials and this writer has seen more than one friendship destroyed by
partners reading what the other partner said in an e mail to a mutual
friend.
At the commencement
of most litigation, your opponent (and you, in turn) will file a
pleading requiring you to maintain in a safe locale all your hard drives
and not to attempt to erase any of them. Once received, that pleading
imposes upon you severe sanctions should the Court find that you
violated it. It is not uncommon for opposing counsel to let that order
stand for months before actually investigating the computer hard drives,
while the opposing party worries about the various documents and
websites that may eventually be viewed by the opposing parties. It is a
wonderful incentive to settlement, one lawyer cynically told this
writer.
To adjust to this
new fact of litigation should be a vital part of each person’s and
business’s planning, yet most do not even know this is an issue. This
article will discuss the basic law of access to computer data in
litigation and suggest some policies that each person may consider
appropriate in planning for this eventuality.
The Law:
Discovery is the
process by which a party can utilize various statutory means during
litigation to obtain documents, admissions and take testimony before
trial. See our article on
The American System of Litigation.
It is during such discovery that access to computer data is usually
sought. And it is allowed.
1. California Law
Supports Inspection of the Computers
California Code of Civil Procedure Section 2031.010 provides that a
demand may be used to obtain inspection of “documents”, tangible things
or land in the possession, custody or control of another party. As
noted in Rutter Guide, California Civil Procedure Before Trial,
Discovery, Electronic Data, Section 8:1428.2, p.8H—4, “[d]ata stored on
any type of electronic device may be subject to inspection. This
includes not only a computer’s hard drive and peripheral storage devices
(disks and backup tapes), but also thumb drives, laptops, cell phones,
personal data assistants (PDAs), etc. [See R.S. Creative, Inc. v.
Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486; 498 [89
Cal.Rptr.2d 353, 362); TBG Ins. Services Corp. v. Sup.Ct. (Zieminski)
(2002) 96 Cal.App.4th 443, 448 [117 Cal.Rptr. 155,
159-160] (home computer).”
In TBG Ins.
Services Corp. v. Sup.Ct. (Zieminski) (2002) 96 Cal.App.4th
443, 448 [117 Cal.Rptr. 155], the moving party sought inspection of the
plaintiff’s home computer. Plaintiff opposed inspection of the computer
on the grounds that the computer contained personal information, and
that the production of the computer would invade his constitutional
right of privacy. The trial court denied the motion to compel, finding
the information on the computer was ‘merely corroborative’ of facts
already in the moving party’s possession since it already had extensive
evidence of the facts sought to be proved, and that any additional
evidence that the home computer would disclose would not outweigh the
fact that the computer contained personal information. The Court of
Appeal ordered issuance of a writ of mandate directing the trial court
to vacate its order denying the demand for production, and compelling
production. The Court of Appeal concluded that the home computer was
indisputably relevant, the fact that evidence might be cumulative was
not a viable objection under California law, and even if plaintiff had
some lingering privacy interest in the information stored on the
computer, defendant’s demand did not constitute a serious invasion of
that privacy interest. Appropriate protective orders could prohibit
unnecessary copying and dissemination of plaintiff’s financial and other
information and it is immaterial that the party seeking discovery
already has extensive other evidence of the same fact: A party “is
entitled to discover any non-privileged information, cumulative or
not…”[ TBG Ins. Services Corp. v. Sup.Ct. (Zieminski) (2002) 96
Cal.App.4th 443, 448 [117 Cal.Rptr. 155, 159-160; City of
King City v. Community Bank of Central Calif. (2005) 131 Calapp.4th
913, 933 [32 Cal.Rptr.3d 384, 398]; Rutter Guide, California Civil
Procedure Before Trial, Discovery, Electronic Data, Section 8:70.5,
Cumulative Evidence, p.8C—3. The only limitation is that the
information sought must be relevant, i.e. reasonably assist a party in
evaluating its case, preparing for trial or facilitating a settlement. (Glenfed
Development Corporation. v. Superior Court (1997) 53 Ca.App.4th
1113, 1117. See also, Rutter Guide, California Civil Procedure Before
Trial, Discovery, 8:1426-8:1427.1
2. The Information
Sought from the Computers Must Be Relevant
As noted in TBG
Ins. Services Corp. v. Sup.Ct. (Zieminski) (2002) 96 Cal.App.4th
443, 448 [117 Cal.Rptr. 155, 159-160] quoting (Glenfed Development
Corporation. v. Superior Court (1997) 53 Ca.App.4th 1113,
1117, “[a] party may obtain discovery regarding any matter, not
privileged, that is relevant to the subject matter involved in the
pending action…if the matter either is itself admissible in evidence or
appears reasonably calculated to lead to the discovery of admissible
evidence. (Section 2017, subd. (a).) In the context of discovery,
evidence is ‘relevant’ if it might reasonably assist a party in
evaluating its case, preparing for trial, or facilitating a settlement.
Admissibility at the actual trial is not the test, and it is
sufficient if the information sought might reasonably lead to other
admissible evidence. In the more specific context of a demand for
production of a tangible things, the party who asked the trial court to
compel production must show ‘good cause’ for the request—but unless
there is a legitimate privilege issue or claim of attorney work product
, that burden is met simply by a fact—specific showing of relevance.”
3. The Party
Resisting Production Has the Burden to Prove a Claimed Privacy Interest
Outweighs the Right to Inspect
The Party resisting
discovery of its computer data has a high burden of establishing that
his or her right of privacy bars inspection of the home computers. (Hill
v. National Collegiate Athletic Association (1994) 7 Cal.4th
1, 39-40. [26 Cal.Rptr. 2d 834]). The party must establish: (1) a
legally protected privacy interest; (2) a reasonable expectation of
privacy in the circumstances; and, (3) conduct by moving party
constituting a serious invasion of privacy.
There are two general classes of legally recognized privacy interests;
(1) interests in precluding dissemination or misuse of sensitive and
confidential information or “informational privacy”; and, (2) interests
in making intimate personal decisions or conducting personal activities
without observation intrusion, or interference or “autonomy privacy”. (Hill,
supra, 7 Cal.4th at p. 35) Courts have routinely held that
privacy rights must give way to the far more powerful right to access to
possible evidence. Showing that the computer was used as to any relevant
communications will normally allow full inspection. The courts hold that
once one uses the computer for such purposes, they no longer have a
reasonable expectation of privacy as to its contents. As noted in
Vinson v. Superior Court (1987) 43 Cal. 3d 833, 842 [239 Cal.Rptr.
292, 740 P.2d 404], a party cannot be allowed to make serious
allegations without affording the other party an opportunity to put
their truth to the test.
Even assuming the
existence of a legally cognizable privacy interest, the extent of that
interest is not absolute—the extent of the privacy interest is dependent
upon the circumstances of that particular case, i.e., do the
circumstances create a reasonable expectation of privacy? (Hill,
supra, 7 Cal.4th at 36; TGB, supra, 96 Cal.App.4th
at 449.) With respect to communications and/or documents relative to
deleted items, it has been concluded that persons who use e-mail to
communicate do not have a reasonable expectation of privacy in those
communications. (See United States v. Charbonneau (S.D. Ohio
1997) 979 F. Supp. 1177, 1184 (“an e-mail message, like a letter, cannot
be afforded a reasonable expectation for privacy once that message is
received”).
Further, courts have often held that a moving parties’ demand to inspect
computers does not constitute a serious invasion of that interest.
(Hill, supra, 7 Cal.4th at p. 39-40; TGB, supra 96 Cal.
App.4th at p. 449.) Moving parties are often willing to stipulate to an
appropriate protective order defining the scope of the inspection and
copying of information on the computers to that which is directly
relevant to a particular litigation and that is normally enough to
satisfy the courts…even though the computer will still fully be
investigated by strangers, to the discomfort of the producing party.
Practicalities:
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You must assume
that in any litigation involving you or your company, every computer
you utilize for e mail or drafting documents will be subject to
scrutiny by experts. You may get a limited protective order as to
what can be done with the data-but the fact remains that hostile
inquiry will be made into each computer you have so utilized.
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You must assume
that this pertains to any e mail you received on each computer.
Thus, if you occasionally utilize your home or personal computer to
receive or send e mails…or even only used it once… those will be
equally subject to the inquiry. If your spouse or children utilize
your computer or if you have ever utilized their computers, their
data will be equally subject to scrutiny.
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The same rules
apply to computer, text messages on cell phones, Blackberrys, Treos,
etc. All will be examined.
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Hard drives are
only truly erased with extremely sophisticated equipment. What the
layperson considers “erasing” is actually deleting it from a folder
and moving it to another folder on the computer. While these folders
slowly remove information as they are overwritten, that is not
always the case and usually takes years.
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If a matter is
deleted or even erased, a good computer expert can not only
determine when and how it was done, but can often retrieve much of
the “erased” information.
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The fact that
information was deleted or attempted to be deleted is, itself,
admissible as evidence and, as in the Watergate scandal, can be more
incriminating than anything found on the computer.
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Once one
receives notice to preserve the hard drive and equipment, erasure or
deletion can be a violation of a court order and result in severe
sanctions. Such notices are now routine at the beginning of every
case.
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One expert put
it well to this writer: the only way a lay person can actually erase
a hard drive so that the information can not be retrieved is by
physically destroying it.
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With the
internet and web involvement in e mails, the odds are good that each
document and e mail you sent are stored on a dozen computers in a
dozen servers. Those can be retrieved as well.
Prevention:
There is only one
sure way to avoid access to all data on your computer. Do not put it
there. The problem is that these powerful tools have become such a
critical element in all of our communications that it is impractical to
avoid their use. Nevertheless, the following guidelines should be
considered:
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Do not mix
business with non-business. If you have a personal computer, NEVER
utilize it for any communications involving your business life. Do
not even make it a back up for e mails. Keep it entirely
quarantined.
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Do not utilize
other people’s computers or other forms of electronic communications
such as cell phones or Blackberries.
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If a matter must
be kept confidential, make it an
attorney client
privileged document.
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If an attorney
is not involved and you do not want the information subject to data
retrieval…pick up the telephone and have a conversation or visit the
person and talk.
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Have a planned
system of hard drive destruction independent of any litigation. See
our article on
Destruction
of Business Records.
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Do not fall into
that odd mental trap that so many of us are prone to do. Your
computer is not a private extension of your mind. It is the most
public tool you have ever used, subject to scrutiny, even without
litigation, by every person who can gain access to your network.
Just because it is sitting on your desk with your password do not
assume for a moment that it is private.
Thoughts:
The discipline
necessary to rigidly utilize the business computer only for business and
to carefully edit, at least mentally, any and all communications via e
mail is seldom encountered in the business or, indeed, the personal
world. The ease and efficiency of e mail communication, the increasing
reliance on the portable devices and the international nature of such
communication makes control all the more difficult.
And even if one
shows discipline in one’s own use of a computer, if one receives an e
mail relevant to the matter at hand then your computer is suddenly
subject to investigation. What has actually occurred is a significant
increase to litigants' of access to data of the opposing parties and
witnesses which is transforming the world of litigation.
One client of this
office utilizes three separate computers which he does not mix and match
and controls who has access to separate e mail accounts so that his
personal computer can not even receive critical e mails involving other
cases. He understands that he must control those documents received to
particular accounts to maintain any real chance for privacy.
But he is in a very
small minority and the rest of us must assume that with litigation will
come entry into all the information contained on any data storage device
we utilize, from cell phones to laptops, from desk tops to Treos.
Be prepared.
As noted in Rutter Guide, California Civil Procedure Before
Trial, Discovery, 8:1472—1472.5, “[i]f necessary, the responding
party must through detection devices, translate any data
compilation included in the demand into reasonably usable
form.” [CCP Section 2031.280(b)…] This includes computer data
downloaded and stored on magnetic tapes, regardless of the
difficulties that may be encountered. [Toshiba America
Electronic Components, Inc. v. Sup.Ct. (Lexar Media) (2004)
124 Cal.App.4th 762, 768 [21 Cal. Rptr. 3d 532,
538]”…Although the statute is not explicit, ‘usable form’
presumably means that data stored in a computer file that is not
too voluminous must be furnished in the form of a paper
printout. If the file is too voluminous however, ‘usable form’
may mean furnishing a computer disk containing the computer file
and any custom or proprietary software programs used to select,
categorize or evaluate the data.
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