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 being 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.The appeals court agreed with Menke and granted certiorari to quash the administrative law judge’s order requiring production of Menke’s computers. The court held that production and search of a computer is to be conducted by the producing party so as to protect their confidential information. Menke suggests that the production of the computer itself is a last resort only justified “in situations where evidence of intentional deletion of data was present.”83 The Menke court concluded with these words, which also seem a good note on which to end this article:
Menke contends that the respondent’s representative’s wholesale access to his personal computer will expose confidential communications and matters entirely extraneous to the present litigation, such as banking records. Additionally, privileged communications, such as those between Menke and his attorney concerning the very issues in the underlying proceeding, may be exposed. Furthermore, Menke contends that his privacy is invaded by such an inspection, and his Fifth Amendment right may also be implicated by such an intrusive review by the opposing expert.82
Because the order of the administrative law judge allowed the respondent’s expert access to literally everything on the petitioner’s computers, it did not protect against disclosure of confidential and privileged information. It therefore caused irreparable harm, and we grant the writ and quash the discovery order under review. We do not deny the Board the right to request that the petitioner produce relevant, non-privileged, information; we simply deny it unfettered access to the petitioner’s computers in the first instance. Requests should conform to discovery methods and manners provided within the Rules of Civil Procedure.
Disclosure of confidential information is not the only potential harm when a party is permitted access to the opposing party’s computers. Another consideration relating to a request for access to the client’s computers, equipment, or software is the potential of harm to the client’s hardware, software, and data. Any foray permitted by the court must balance the need for the level of access sought versus the potential harm to the party producing access. This is another reason for using neutral, qualified experts to assist in discovery.
One infrequent exception to the high bar protecting access to a party’s computer or personal device may be when there is a showing that the device may contain relevant information, and there is no less intrusive means of discovery other than access to the device. In Antico v. Sindt Trucking, Inc.,84 evidence was presented in a wrongful death auto negligence case that showed that the decedent-driver was texting or talking on her iPhone at the time of the automobile accident at issue in the case. Over vague “privacy” objections, the trial judge ordered that the defense (requesting party) expert could examine the information on the decedent’s iPhone over a 9-hour period around the accident, but the order strictly controlled how the confidential inspection must proceed.85 The first district upheld the order as a proper balance of the need for the discovery and protection of privacy interests.86 However, the decision of the appellate court was apparently influenced by the plaintiff’s failure to advance any less intrusive alternatives for discovery than access as prescribed by the trial court.87
