Defendant’s Request to “Roam Freely” Through Plaintiff ESI Denied in NOLA
In Nola Spice Designs, LLC v. Haydel Enterprises, Inc., No 12-2515(E.D.La. August 2, 2013), the defendant issued requests for certain plaintiff ESI and electronic data. The case involved trademark infringement, and plaintiff sought a declaratory judgment and other relief. Defendant Haydel issued ESI requests, specifically:
- “Passwords and user names to all online web sites related to the issues in this litigation, including social media, weblogs, financial information and records,” additionally
- Submission of “computers to an exhaustive forensic examination.”
Plaintiff objected to the requests, and the district court ruled on defendants’ Motion to Compel. Defendants claimed and cited case law to suggest plaintiff had no protectable privacy interest in social media materials. The court noted that although true, such an argument misses the point. Calling the first request for social media passwords “ultra-broad” and noting that such access to social media would allow defendants to “roam freely through all manner of personal and financial data in cyberspace…” The court denied this request, claiming it knows of no legal authority to allow such “uncontrollable discovery of ESI.”
As for the request that computers be submitted to the computer forensics expert for examination, the court noted that there is legal authority for this found in Fed. R.Civ.Pro. 34(a)(1)(A). However, such authority is also subject to proportionality limitations in Rule 26(b)(2)(C). While a request for an “exhaustive” forensic examination and mirror imaging of computers may be warranted in some situations, the facts in this case do not support it. When is such an examination allowed?
“Courts have permitted restrained and orderly computer forensic examinations where a moving party has demonstrated that its opponent has defaulted in its discovery obligations by unwillingness or failure to produce relevant information by more conventional means.” Although the court concedes that the computers are relevant in the case, the plaintiff had not defaulted on its discovery obligations that would justify such a request. The Motion to Compel plaintiff eDiscovery was denied on both counts.