The Brave New World of Discovery: Forensic Inspection of Electronic Devices
Margaret E. “Amie” Kozan, Esq.
Appellate Practice Committee // The Briefs, November 2019, Vol. 87 No. 9
Fourteen years ago, the Fourth District Court of Appeal recognized the unique privacy ramifications of orders allowing a litigant or its representative to access an opposing party’s electronic devices:
Today, instead of filing cabinets filled with paper documents, computers store bytes of information in an ‘electronic filing cabinet.’ Information from that cabinet can be extracted, just as one would look in the filing cabinet for the correct file containing the information sought. In fact, even more information can be extracted, such as what internet sites an individual might access as well as the time spent in internet chat rooms. In civil litigation, we have never heard of a discovery request which would simply ask a party litigant to produce its business or personal filing cabinets for inspection by its adversary to see if they contain any information useful to the litigation. Requests for production ask the party to produce copies of the relevant information in those filing cabinets for the adversary.1
So, is it ever proper for a trial court to order a party to produce his electronic device for inspection rather than the information contained thereon? If so, under what circumstances?
Cases that have addressed the issue make clear that forensic examination of an opposing party’s electronic devices is rarely appropriate.2 Even when this type of examination is allowed, courts must put in place strict controls to minimize the privacy breach and the likelihood that an opposing party’s representative will see privileged and confidential information. Ordering a party to turn over an electronic device should not be the first means of obtaining the relevant information but should be a last resort.3
As a general rule, the Florida Rules of Civil Procedure allow for the discovery of information that is relevant and admissible or that is reasonably calculated to lead to admissible evidence.4 This includes electronically stored information.5 However, the Florida Constitution also guarantees Florida citizens the “right to be let alone and free from governmental intrusion into the person’s life.”6 Florida courts have recognized that orders compelling discovery constitute state action that may impinge on constitutional rights, including the constitutionally protected right of “disclosural” privacy.7 Thus, courts must balance the competing interests of the litigant’s need for the information to prove his case (which includes an assessment of the information’s probative value) against the potential privacy harm from compelled disclosure of the information.8
A search of a computer device might be approved if a requesting party proves (1) evidence of destruction of evidence or thwarting of discovery; (2) a likelihood the information exists on the devices; and (3) no less intrusive means exists of obtaining the information.9 There will likely be circumstances where an order for forensic inspection would still be inappropriate, even if all these elements are met, after a court balances the competing interests at work.10
In considering the elements themselves, it is unlikely that mere failure to produce information in response to an initial discovery request, without more, would constitute a “thwarting” of discovery sufficient to satisfy the first element.11 As one federal court has observed: “Generally speaking, courts do not require a forensic analysis in the absence of consent unless there has been significant non-compliance with discovery obligations.”12 Under the principle that “[r]equiring a forensic analysis of ESI is an unusual and ‘drastic’ remedy and is therefore the ‘exception and not the rule,’” the federal court noted that courts compel a party to turn over its computers for a forensic ESI analysis “only where there is a strong showing that the party (1) intentionally destroyed evidence, or (2) intentionally thwarted discovery.”13 The court noted that this rule is similar to Florida’s.14
Even where such a showing has been made, because of the likelihood that privileged and confidential information may be accessed, such inspection should be allowed only “in limited and strictly controlled circumstances.”15
The second element that Florida courts consider in determining whether inspection of electronic devices may be warranted – a likelihood that information exists on the devices – requires more than mere argument or supposition of counsel.16 As one court noted in affirming a trial court order allowing inspection of a party’s cell phone, “the context” of the discovery request “is quite important.”17 The parties seeking inspection in that case supported their motion with specific evidence such as cell phone records and witness observations.18
Finally, the third element requires that before a court allows access to the device itself, it should, at the very least, first order the device owner to search the computer himself and produce relevant material contained therein. Where a party has not first sought to obtain the information contained on a device through requests for production and motions to compel before seeking access to the device itself, reviewing courts will most likely determine that access to the device is not the least intrusive means of obtaining the information sought and is thus improper.
Also, where other discovery methods have not been exhausted, such as deposition questions inquiring as to information on a computer, or where the information can be obtained from other sources, counsel defending such motions should argue that inspection of the device is not the least intrusive means of obtaining the information sought. With this overview of the law on discovery of electronic devices, consider the following.
- Before seeking electronic inspection of a device, request the actual documents or information that may be contained on the device. If the opposing party refuses to disclose those, seek an order compelling their production. Once a court order is in place and an opposing party still refuses to comply, there is a stronger argument that discovery has been “thwarted” and that inspection of the devices may be warranted.
- For counsel representing parties against whom such discovery is sought, explain to clients the potential ramifications of refusing to voluntarily produce information contained on electronic devices. Still, be proactive in utilizing the protections contained in the Florida Rules of Civil Procedure, including motions for protective order, where privileged or confidential information is sought or requests sweep too broadly. Make sure the court understands that an order requiring that privileged and confidential information be disclosed to any other person (even if not the opposing party itself) is still a privacy infringement and thus is only warranted in extreme cases.19
- Seek certiorari review if a court improperly orders that your client’s electronic devices be produced. Courts recognize that “cat-out-of-the-bag” discovery of privileged and confidential information causes the type of irreparable harm that cannot be remedied on a plenary appeal.20
- If a court does determine that circumstances warrant forensic inspection, advocate for inclusion of protections in the order that will lessen the invasion such as (1) allowing the party against whom the discovery is sought to use his or her own expert for searching the device or provide for the use of a third-party neutral (such as a court-appointed expert) rather than the paid representative of the opposing party; (2) providing that the party’s representative shall be present throughout the inspection process; (3) providing that any copies of hard drives must be immediately destroyed after inspection; (4) tailoring the search to relevant material through keyword searching or other technologically available means; (5) providing for in camera inspections of potentially confidential or privileged information prior to authorizing the release to the opposing party; and (6) other such protections as case circumstances warrant.
Margaret E. “Amie” Kozan, Esq., practices appellate litigation and provides strategic trial support services to litigators. She was the chair of the OCBA’s Appellate Practice Committee from 2015 to 2016. She has been a member of the OCBA since 2010.
1 Menke v. Broward Cty. Sch. Bd., 916 So.2d 8, 10 (Fla. 4th DCA 2005).
2 See id.; Holland v. Barfield, 35 So.3d 953, 955 (Fla. 5th DCA 2010).
3 Menke, 916 So.2d at 11-12.
4 See Fla. R. Civ. P. 1.280(b)(1); Fla. R. Civ. P. 1.350.
5 See Fla. R. Civ. P. 1.280(b)(3); see also Fla. R. Civ. P. 1.280(d) addressing limitations on the discovery of electronically stored information due to undue burden or expense.
6 Art. I, § 23, Fla. Const.
7 See, e.g., S. Fla. Blood Serv., Inc. v. Rasmussen, 467 So.2d 798, 803 (Fla. 3d DCA 1985, aff’d, 500 So.2d 533 (Fla. 1987)); Nucci v. Target Corp., 162 So.3d 146 (Fla. 4th DCA 2015) (noting that the right to privacy in the Florida Constitution “ensures that individuals are able ‘to determine for themselves when, how and to what extent information about them is communicated to others’”) (quoting Shaktman v. State, 553 So.2d 148, 150 (Fla. 1989)).
8 Rasmussen v. S. Fla. Blood Serv., Inc., 500 So.2d 533, 535 (Fla. 1987).
9 See Holland, 35 So.3d at 955 (citing Menke, 916 So.2d at 12)).
10 E.g., Rasmussen, 500 So.2d at 535.
11 See Holland, 35 So.3d at 955 (concluding that there was no evidence of discovery thwarting).
12 Procaps S.A. v. Patheon, Inc., No. 12-24356, 2014 WL 11498061, at *3 (S.D. Fla. Dec. 30, 2014) (emphasis added).
13 Id. at *10 (emphasis added).
15 Menke, 916 So.2d at 12 (holding that the protections put in place by the lower court judge were insufficient to protect against disclosure of confidential and privileged information – even if disclosure was only to the opposing party’s expert – and therefore allowing access to a party’s computer by a paid representative of the opposing party caused irreparable harm; the protections deemed insufficient included prohibiting the opposing party’s expert from disclosing to the opposing party or its counsel any communications that might be deemed privileged; allowing the party against whom the discovery was sought to have his own expert present when the inspection took place; and allowing for an in camera inspection of any materials the party’s expert thought might be a privileged communication).
16 See Antico v. Sindt Trucking, Inc., 148 So.3d 163 (Fla. 1st DCA 2014); Klayman v. City Pages, 2014 U.S. Dist. LEXIS 150253 (M.D. Fla. 2014) (“mere speculation that more documents must exist is not a sufficient basis for the Court to order an invasive search of Defendant’s computers and telephone records”); Memry Corp. v. Kentucky Oil Tech., No. C04-03843, 2007 WL 832937, at *3 (N.D. Cal. Mar. 19, 2007) (explaining “a mere desire to check that the opposition has been forthright in its discovery responses is not a good enough reason” for a court order compelling an exhaustive forensic examination) (citation and internal quotation omitted).
17 Antico, 148 So.3d at 166.
18 Id. at 166-67.
19 Menke, 916 So.2d at 11-12.
20 See, e.g., Brooks v. Brooks, 239 So.3d 758, 760 (Fla. 1st DCA 2018).