Header graphic for print
Electronic Discovery Law Blog Legal issues, news, and best practices relating to the discovery of electronically stored information.

Court Quashes Order Compelling Production of Computers Absent Evidence of Spoliation

Posted in CASE SUMMARIES

Menke v. Broward County Sch. Bd., 916 So. 2d 8 (Fla. Dist. Ct. App. 2005)

David Menke (“Menke”) is a high school teacher who was suspended for alleged misconduct. Allegations included claims that he had exchanged sexually-explicit emails with minor students and made derogatory comments about school personnel and operations with students. Menke requested a formal hearing, and in the proceedings the Broward County School Board (the “Board”) sought inspection of Menke’s home computers by its expert in the expert’s laboratory. Menke objected, but the administrative law judge granted the Board’s motion to compel production of the computers.

The judge did grant certain protections for Menke’s rights. The Board’s expert was not to retain, provide, or discuss any potentially privileged communications that he found. Menke could also have his own expert present for the inspection, who could designate documents as potentially privileged for in camera review prior to production.

The Fourth Circuit reviewed a petition for certiorari and found several problems with the judge’s order. All communications and other data (including any privileged material) found on Menke’s computers would be revealed to the paid agent of an opposing party, “substantially invading the privacy of Menke and his family.” Also, allowing this procedure would be akin to producing an entire filing cabinet to an opposing party rather than just relevant information (computers contain even more information, including which web sites have been accessed and how long someone may have spent in a chat room.) The court had never heard of a civil litigation production request where an entire cabinet was to be produced for inspection.

Menke asserted that the Board’s expert would have access to confidential and extraneous information, communications between Menke and his attorney may be exposed, Menke’s privacy would be invaded, and his Fifth Amendment right may be implicated by the intrusive review.

The Fourth Circuit looked to the Florida Rules of Civil Procudure, which applies to administrative law judges in connection with discovery. Florida Rules of Civil Procedure 1.350(a)(3) does encompass requests to examine computer hard drives as decided in Strasser v. Yalamanchi, 669 So.2d 1142 (Fla. 4th DCA 1996). However, “intrusive searching of the entire computer by an opposing party should not be the first means of obtaining relevant information.” Searching should first be done by the defendant unless there is evidence of data destruction designed to prevent the discovery of relevant data in the particular case. Indeed, in all cases found by the Fourth Circuit where access to another party’s computer was permitted, there had been some evidence of intentional deletion of data. There is no such evidence here.

The order compelling production allowed the Board’s expert access to everything on Menke’s computers and failed to protect against disclosure of confidential and privileged information. It thus caused irreparable harm. The Fourth Circuit granted the writ and quashed the order.