Nancy Hamilton's Notes

Nancy Hamilton's Notes Beware Electronic Discovery Nightmares

In the wake of Enron, the fall of Arthur Andersen, and the Zubulake cases, we are all well aware of the duty to preserve electronic evidence just as we would hard copy documents. But new tactics are emerging in the litigation arena, where plaintiffs who have no interest in reaching the merits of a defamation case instead wage a war of presumptive spoliation, claiming that defendants could not possibly have turned over each and every responsive email, and convince trial courts to order the turnover of computers to third-party computer experts for forensic examination.

In several recent cases in Texas – and no doubt elsewhere – trial judges facing motions to compel electronic discovery, who are overwhelmed and confused by the technology, are being tempted by seemingly earnest, helpful, and conciliatory plaintiffs' lawyers who suggest an innovative solution: why not appoint a computer examiner to retrieve electronic communications from the responding party's computers – wouldn't that be the simplest, most expedient, and best solution to everyone's problems? But therein lies the danger.

Rather than following "old-fashioned" but well-established discovery rules and procedures, some courts have instead succumbed to the siren song of new technology and turned over the reins of electronic discovery to third parties. By virtue of discovery orders, those third parties have been granted unprecedented and unwarranted authority and access to the defendants' private and professional affairs contained in company or personal computers. Whether under the guise of computer forensic examiner or the cloak of special master appointed by the court (or a combination of both), these third parties often have unlimited authority to search and seize the equivalent of the contents of a party's home and office, including the content of every file, drawer, file cabinet, closet, and storage space wherever they may be found – including under the bed. Of course, the search and seizure of a party's home or office would be outrageous and beyond the pale. Yet many seem to feel no compunction about such draconian measures when it comes to electronic discovery. While certain cases of theft of trade secrets and copyright may warrant some limited level of intrusion, it is nonetheless a shocking turn of events when such measures are used in general litigation, and even more so in the context of media defendants, reporters, journalists, and bloggers sued in defamation cases.

Lest you think that this could not happen to you or your company, recently in Harris County, Texas, we have been involved in a case where the trial court, in response to a motion to compel documents – not electronic hard drives – ordered the defendants to turn over their computers and hard drives to a computer forensic examiner who was also appointed Special Master to review all communications contained therein. Two pro se defendants, who are bloggers, were jailed for contempt for refusing to turn over their computers to the Special Master for forensic review. A default order was entered against another pro se defendant for discovery abuse after the Special Master found spoliation. Petitions for writs of mandamus are currently pending, and the Texas Supreme Court has entered a stay of the discovery orders appointing the Special Master and ordering the examination of the computers.

No doubt this was in part due to the Court's decision last month in In re Weekley Homes. L.L.P., __S.W.3d ___, 2009 WL 2666774 (Tex. 8/28/09), where for the first time, the Court addressed a case in which a company's employees were ordered to turn over their computers to computer forensic examiners for wholesale examination. The Court, in conditionally granting mandamus, held that such "highly intrusive methods of discovery," which afforded complete access to all the data stored on the computer, would not be condoned and that the harm the employees would suffer from being required to relinquish control of the hard drives, and the harm that might result from revealing private conversations, trade secrets, and privileged and confidential communications, could not be remedied.

Thus, there is hope that this nightmare will be short-lived and the sun will come up tomorrow.

— Nancy Hamilton is a partner at Jackson Walker. She can be reached at nhamilton@jw.com.