Electronic Discovery Law

Posted at 9:35 AM on January 30, 2007 by K&L Gates

Motion to Compel Production of Plaintiff's Home Computer Denied as Improper Attempt to Troll for Impeachment Evidence

Hedenburg v. Aramark Am. Food Servs., 2007 WL 162716 (W.D. Wash. Jan. 17, 2007)

In this employment discrimination case, defendant sought to probe the veracity of plaintiff's claims by seeking a "mirror image" of plaintiff's home computer hard drive. Defendant contended that plaintiff’s personal correspondence with unnamed third parties (in the form of emails or internet postings) might reveal discrepancies in her testimony about the impact of the events on her emotional state, or in her testimony about what occurred. Defendant argued that access to a plaintiff's computer was common in employment cases, and offered to have the hard drive mirror image sent to a "special master” in an effort to avoid retrieval of privileged or other non-discoverable information. Plaintiff stated that she made a diligent search for her computer files and contended that she did not have additional information. She objected to the discovery as a "fishing expedition" and refused to permit the defendant access to her home computer's hard drive.

The court distinguished the cases cited by defendant, and observed that the “common thread” of the cases was that such a search is sometimes permitted where the contents of the computer go to the heart of the case. Here, the court found that the central claims in the case were wholly unrelated to the contents of plaintiff's computer, and that defendant was “hoping blindly to find something useful in its impeachment of the plaintiff.” It further noted:

Defendant essentially seeks a search warrant to confirm that Plaintiff has not memorialized statements contrary to her testimony in this case. If the issue related instead to a lost paper diary, the court would not permit the Defendant to search the plaintiff's property to ensure that her search was complete.

The court therefore denied defendant’s motion to compel.

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