Commercial Litigation and Arbitration

Electronic Discovery — Unfettered Access to Opponent’s Hard Drive

The plaintiff-employer in Calyon v. Mizuho Secs. USA Inc. , 2007 U.S. Dist. LEXIS 36961 (S.D.N.Y. May 18, 2007), sued several former employees for allegedly transmitting confidential business information to their new employer. The ex-employees agreed to preserve mirror images of the hard drives of their personal computers, PDAs, etc., and produced information in response to discovery requests. The former employer contended that this was inadequate and that its electronic discovery expert ‛need[ed] complete access to the mirror images to ‘effectively investigate and determine the details of when and by what means’ the Individual Defendants obtained documents from [the plaintiff] on their personal computers, and what they did with those documents....“ The former employees objected on privacy grounds, arguing that ‛granting [plaintiff’s] expert ‘unfettered access’ to the Individual Defendants' home computers and computer storage devices would impermissibly invade the privacy rights of the Individual Defendants and their non-party family members who have also used the computers.“

Magistrate Judge Debra Freeman analyzed the few cases that, based on similar facts, addressed whether unfettered access to an opponent’s hard drive is justified (Ameriwood Industries, Inc. v. Liberman, No. 4:06 CV 524-DJS, 2006 WL 3825291, at *3, *6 (E.D. Mo. Dec. 27, 2006), amended by 2006 WL 685623 (E.D. Mo. Feb. 23, 2007); Cenveo Corp. v. Slater, No. 06-CV-2632, 2007 WL 442387, at *1-3 (E.D. Pa. Jan. 31, 2007); Frees, Inc. v. McMillian, No. 05-1979, 2007 WL 184889, at *3 (W.D. La. Jan. 22, 2007); Balfour Beatty Rail, Inc. v. Vaccarello, No. 3:06-CV-551-J-20MCR, 2007 WL 169628, at *2-3 (M.D. Fla. Jan. 18, 2007)).

She concluded that the plaintiff had not established its entitlement to the hard drives for three reasons:

(1) There was no showing that the ex-employees had failed to produce all responsive documents ‛or that there are ‘discrepancies or inconsistencies’ in these defendants' responses to prior discovery requests.“

(2) There was no claim by any of the ex-employees that any data had been lost and, therefore, could not be produced.

(3) The plaintiff did not identify any specific information hat it sought from the mirror imaged drives, nor did it show that the ex-employees could not, or would not, produce that information.

Judge Freeman, however, denied the motion without prejudice only. In concluding her thoughtful opinion, she ordered (i) the defendants to make their computer forensics expert available for consultation with the plaintiff’s expert, (ii) counsel and experts to confer ‛on an on-going basis to determine if the search protocol needs refinement, and (iii) continued preservation of the mirror images of the hard drives.

Note: See also the subsequently published opinion in Geer v. Gilman Corp., 2007 U.S. Dist. LEXIS 38852 (D. Conn. Feb. 12, 2007) (denying access to hard drive of plaintiff's fiancй's computer, which the plaintiff used to consult with her counsel -- see post of June 3, 2007, above).

Share this article:


Recent Posts