A new case from the U.S. District Court for the Western District of Michigan (Thielen v. Buongiorno USA Inc., W.D. Mich., Case No. 06-16, 2/8/07) has provided some guidance on the question of what happens when a party in litigation gets a court order permitting it to review the contents of an opposing party’s hard drives.
If the discovery request related to paper documents, the producing party would be able to cull out documents that were irrelevant or that contained attorney-client information or that were subject to some other privilege. But, if you produce the entire hard drive or permit an image to be created, the producing party would have no ability to narrow the range of information being provided to only the information relevant to the litigation.
The court in the Thielen litigation addressed just that problem. As the court put it, unrestricted access would permit "wholesale rummaging" through the hard drive.
To protect against this “wholesale rummaging,” the court ordered special procedures be used to limit the information disclosed to only information relevant to the litigation. Specifically, the court directed the requesting party to hire a forensic expert to analyze the producing party’s hard drive to search for and identify evidence relevant to the case. The forensic expert would conduct their investigation outside the presence of both parties. When the expert completes the review, he would provide the owner of the hard drive a copy of the proposed findings. The owner would then have a defined period of time to object to the findings and file a request with the court to limit the information being disclosed. All costs of the expert and their review would be borne by the requesting party.
The courts approach certainly presents a very reasonable approach to this thorny problem. It is the latest in a series indicating courts are having some serious concerns about granting parties unbridled access to computer systems in litigation. From the perspective of a party in a litigation, you should understand that making a broad request for access to the other party’s computer systems may backfire, resulting in the other party sending a similar request to you. This is the MAD (Mutual Assured Destruction) doctrine applied to electronic discovery. The parties to litigation must not use discovery requests for the other party’s computer systems for fishing expeditions, but for purposes of seeking the production of clearly defined types and categories of information. To do otherwise, will likely expose both parties to the possibility of MAD.
