In re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007)
Defendants in underlying real estate litigation sought a writ of mandamus compelling the trial court to set aside a discovery order that required them to permit a forensic expert to create a mirror image of each of the computer hard drives in their office in an effort to locate two particular documents or iterations of those documents. The documents were two drafts of a partial assignment of a real estate contract, and served as the basis for the underlying suit. Plaintiff A & W Development, LLC had sought the metadata because it wanted to identify the points in time when the partial assignment draft was modified in relation to a particular diary entry. The evidence related to the issue of whether the Honzas altered the partial assignment after the parties concluded their agreement.
The Honzas contended that the court abused its discretion because: (1) the discovery order was overbroad and authorized an improper "fishing expedition"; (2) the order authorized the disclosure of information protected by the attorney-client privilege; and (3) the order authorized the disclosure of confidential information pertaining to the Honzas’ other clients who had no connection to the underlying lawsuit.
The appellate court denied the petition for writ of mandamus, finding that the order was not overbroad and was appropriately tailored to prohibit the unauthorized disclosure of privileged or confidential information. In reaching its decision, the appellate court noted that there was no Texas authority directly on point, and described the relevant state and federal decisions:
Although there appear to be no Texas decisions addressing a request for access to an opponent’s computer hard drives, a body of state and federal decisions has emerged and has established a fairly uniform approach for such requests. Cf. In re CI Host, Inc., 92 S.W.3d 514, 516-17 (Tex. 2002) (orig. proceeding) (approving order requiring production of computer backup tapes). Federal district courts have consistently held that electronic data stored on computer hard drives, including "deleted" files and related data, is subject to discovery. See Orrell v. Motorcarparts of Am., Inc., No. 3:06CV418-R, 2007 WL 4287750, at *7 (W.D.N.C. Dec. 5, 2007); Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568, 572 (N.D. Ill. 2004); Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 316-17 (S.D.N.Y. 2003); Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645, 652 (D. Minn. 2002); Rowe Entm’ t, Inc. v. The William Morris Agency, Inc., 205 F.R.D. 421, 428 (S.D.N.Y. 2002); Simon Prop. Group L.P. v. mySimon, Inc., 194 F.R.D. 639, 640 (S.D. Ind. 2000); Playboy Enters., Inc. v. Welles, 60 F.Supp.2d 1050, 1053 (S.D. Cal. 1999). But see In re Ford Motor Co., 345 F.3d 1315, 1316-17 (11th Cir. 2003) (orig. proceeding) (finding district court’s order granting plaintiff "unlimited, direct access to Ford’s databases" to be an abuse of discretion).
Some state courts have reached the same conclusion. See Ex parte Cooper Tire & Rubber Co., — So.2d —-, 2007 WL 3121813, at *13-15 (Ala. Oct. 26, 2007) (orig. proceeding); In re Maura, 842 N.Y.S.2d 851, 858 (N.Y. Sur. Ct. 2007); see also Analog Devices, Inc. v. Michalski, No. 01-CVS-10614, 2006 WL 3287382, at *16 (N.C. Super. Nov. 1, 2006) (not designated for publication) (granting access to computer backup tapes); [FN5] Menke v. Broward County Sch. Bd., 916 So.2d 8, 11-12 (Fla. Dist. Ct. App. 2005) (approving of such discovery but cautioning that an "intrusive searching of the entire computer by an opposing party should not be the first means of obtaining relevant information"). [FN6]
FN5. The decision of the Superior Court of North Carolina provides an excellent discussion of the various approaches courts have taken (and other interested entities have proposed) for determining whether a party is entitled to access to the opposing party’s computer hard drives and the parameters for such access. See Analog Devices, Inc. v. Michalski, No. 01-CVS-10614, 2006 WL 3287382, at *5-11 (N.C. Super. Nov. 1, 2006) (not designated for publication).
FN6. The Florida District Court of Appeal approved of the general concept of granting access to an opposing party’s computer hard drives but, like the Eleventh Circuit in In re Ford Motor Co., concluded that the order before it was improper because it gave the expert "access to literally everything on the petitioner’s computers" but "did not protect against disclosure of confidential and privileged information." Menke v. Broward County Sch. Bd., 916 So.2d 8, 11-12 (Fla. Dist. Ct. App.2005); see also In re Ford Motor Co., 345 F.3d 1315, 1316-17 (11th Cir. 2003) (orig. proceeding).
Under these decisions, the following protocol is generally followed. First, the party seeking discovery selects a forensic expert to make a mirror image of the computer hard drives at issue. See Antioch Co., 210 F.R.D. at 653; Rowe Entm’t, 205 F.R.D. at 433; Simon Prop. Group, 194 F.R.D. at 641; Etzion v. Etzion, 796 N.Y.S.2d 844, 847 (N.Y. Sup. Ct. 2005). But see Playboy Enters., 60 F.Supp.2d at 1055 (court appointed expert); Maura, 842 N.Y.S.2d at 858-59 (party opposing discovery chose forensic expert). This expert is required to perform the analysis subject to the terms of a protective order, generally prohibiting the expert from disclosing confidential or otherwise privileged information other than under the terms of the discovery order. See Antioch Co., 210 F.R.D. at 653; Rowe Entm’ t, 205 F.R.D. at 433; Simon Prop. Group, 194 F.R.D. at 642; Playboy Enters., 60 F.Supp.2d at 1055.
After creating the mirror images and analyzing them for relevant documents or partial documents, courts typically require the expert to compile the documents or partial documents obtained and provide copies to the party opposing discovery. [FN7] See Antioch Co., 210 F.R.D. at 653; Simon Prop. Group, 194 F.R.D. at 641; cf. Rowe Entm’t, 205 F.R.D. at 433 (permitting party seeking discovery to first review documents "on an attorney’s-eyes-only basis" for those "material to this litigation" then forward them to the party opposing discovery); Maura, 842 N.Y.S.2d at 859 (documents delivered to court in sealed envelope but subject to review by party opposing discovery to "interpose any objections"); Etzion, 796 N.Y.S.2d at 945 (relevant documents delivered to attorneys for both parties with referee to resolve objections). That party is then to review the documents, produce those responsive to the discovery request, and create a privilege log for those withheld. Antioch Co., 210 F.R.D. at 653-54; Rowe Entm’ t, 205 F.R.D. at 433; Simon Prop. Group, 194 F.R.D. at 641-42; Playboy Enters., 60 F.Supp.2d at 1055. Finally, the trial court will conduct an in-camera review should any disputes arise regarding the entries in the privilege log. Antioch Co., 210 F.R.D. at 654; Maura, 842 N.Y.S.2d at 859; see also Rowe Entm‘t, 205 F.R.D. at 433 (recognizing that subsequent confidentiality or privilege disputes may need to be resolved); Playboy Enters., 60 F.Supp.2d at 1055 (requiring withheld documents to be identified in privilege log); Etzion, 796 N.Y.S.2d at 847 (authorizing referee to determine disputes regarding disclosure of documents recovered from copied hard drive).
FN7. The courts frequently require these experts to carefully document the procedures followed and to retain copies of the mirror image of the hard drives and of the documents and partial documents recovered until the litigation is concluded. See Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645, 653 (D. Minn. 2002); Simon Prop. Group L.P. v. mySimon, Inc., 194 F.R.D. 639, 641-42 (S.D. Ind. 2000); cf. Playboy Enters., Inc. v. Welles, 60 F.Supp.2d 1050, 1055 (S.D. Cal. 1999) (directing party opposing discovery to retain " ‘mirror image’ disk and copies of all documents retrieved" by forensic expert); Etzion v. Etzion, 796 N.Y.S.2d 844, 847 (N.Y. Sup. Ct. 2005) (directing discovery referee to retain hard drive "clones").
The court went on to address the Honzas’ specific objections to the lower court’s order. The court noted that “[a]ny order requiring the imaging of a computer hard drive necessarily grants the expert who is conducting the imaging process access to all data on that hard drive.” However, the lower court had also specifically limited the expert’s search to two documents; gave the Honzas a "right of first refusal" with regard to determining which documents or information are relevant to those two documents and responsive to A & W’s discovery request; imposed stringent limitations on inadvertent disclosures to prevent any unintended waiver of confidentiality or privilege; and placed all participants in the imaging process under a carefully drawn protective order. Thus, the court found that the order was not overbroad, and was appropriately tailored to prohibit the unauthorized disclosure of privileged or confidential information.