Can An Attorney’s Computer Be Searched for ESI?
In Bradfield v. Mid-Continent Casualty Company, Case No. 5:13-cv-222-Oc-10PRL (M.D.Fl. Sept. 15, 2014), Defendant filed a Motion to Compel to obtain a forensic examination of Plaintiff’s attorneys’ computers and law firm server. Plaintiffs had a claim that their home construction was defective, and negotiated a mediated settlement with the builder for damages. The above-styled case is an action against the builder’s insurance company to pay out the damages from the mediated settlement.
Defendant claimed a computer forensic examination of Plaintiff’s counsel’s computers and servers would produce relevant electronic data to the case, including notes on the mediated settlement, consent judgment, agreements with subcontractors and repair damages. Plaintiff objected and argued the request was unnecessary, as any relevant documents or data would have already been provided in discovery. Further, Plaintiff contended any information not already produced would be privileged.
Complicating the issue was that Plaintiff’s attorney presented evidence of a past power surge, whereby electronic data had been corrupted. Plaintiff’s attorney had the law firm IT expert testify he made a good faith effort to recover as much data as possible. However, Plaintiff’s attorney contended he produced as much data as possible and fully responded to the requests; there was no basis to believe other emails or data even existed.
The court looked to Fed.R.Civ.Pro. 26(b)(2)(C): the court must limit the frequently or extent of discovery if it determined that certain conditions existed, such as whether the data was “reasonably accessible.” Considering the testimony of Plaintiff’s attorneys IT expert, the court concluded Plaintiff fulfilled its burden of proving any additional data was not reasonably assessable. The court also applied the proportionality tests of Rule 26(b)(2)(C) to consider if Defendant was still entitled to the information based on good cause shown. As Defendant could not articulate a basis for such an intrusive search, Defendant did not offer good cause. The court denied Defendant’s Motion to Compel the forensic examination of Plaintiff’s counsel’s computer and servers.