Anticipation of Litigation Advisor

Rule 34 Can Permit Inspection of Your Clients' Electronic Devices

January 21, 2019

By: Laurie K. Miller

Typically, when lawyers think about Rule 34 of the Federal Rules of Civil Procedure, they think about production of paper and electronic documents. Although not common, Rule 34 can also be the basis for permitting an actual inspection of the electronic devices of an opposing party.

Forensic Inspection Ordered

A recent case from the Southern District of California provides one such example. See Satmodo v. Whenever Communications, LLC, No. 3:17-cv-192-AJB-NLS, 2018 WL 3495832 (S.D. Cal. July 20, 2018). Satmodo is a case between two competitors who sold satellite telephones. Satmodo alleged that Whenever Communications (“Whenever”) engaged in a scheme designed to remove Satmodo’s paid advertising from appearing in Internet searches. A number of discovery disputes arose between the parties, including a Motion to Compel by Satmodo to inspect and image Whenever’s computers, phones, tablets and other electronic devices. Whenever argued that the requests were overly broad and intrusive.

The court determined that consideration of all relevant factors weighed in favor of allowing Satmodo to inspect Whenever’s devices. Specifically, the court concluded:

Defendants have sole and exclusive access to devices and control over the information they share; inspection of the devices could resolve the issues of the case; and the Court finds that any burden and expense associated with the discovery is proportionate to the needs of the case, will be borne primarily by the Plaintiff, and will be important to the resolution of the issues. For example, inspection of the devices could reveal evidence of the click-fraud that Plaintiff alleges; or that there is no evidence of click-fraud and Plaintiff is on a proverbial goose-chase; or, possibly, that the devices have been modified/wiped. Each of these outcomes has importance to the continuation and resolution of this case.

Rather than allowing Satmodo free and unfettered access to Whenever’s devices, the court went on to detail the exact protocol that was to be used for the inspection of the devices and only allowed full imaging under limited circumstances. The court indicated that its protocol for the inspection adequately considered and addressed Whenever’s privacy concerns. The court also warned that, in the event either party engaged in the inspection process in bad faith or was non-compliant with the court’s order, the party could be sanctioned.

Here, the party seeking the inspection (Satmodo) was able to persuade the court that an on-site forensic inspection of devices was proportional and appropriate for the case, and the court was able to explicitly define the limits of the inspection based on its understanding of the legal and technical issues in the case. While the background is not provided in the actual opinion, it is clear that the parties spent time educating the court on the nature of the technology at issue and exactly what discoverable information was sought from the inspection, as well as how it could be obtained in a minimally intrusive way to protect the privacy rights of the party owning the devices.

Forensic Inspection Denied

Contrast Satmodo with Motorola Solutions, Inc. v. Hytera Communications Corp., No. 17 C 1973 (N.D. Ill. May 17, 2018). In this case, Motorola claimed that Hytera stole its intellectual property, but Motorola did not bring its claim until almost ten years after the alleged theft. The court heard argument on Hytera’s motion to dismiss based on the statute of limitations and Motorola’s defense of equitable tolling of the statute. The court then allowed a short period of discovery on the question of tolling. It was within this context that the discovery dispute between the parties arose. Motorola sought to conduct a forensic examination of the computers of certain Hytera witnesses who were involved in the use of Motorola’s confidential information. Motorola argued that the inspection would:

provide substantial information relevant to Hytera’s concealment of its theft, including (1) how the Motorola materials were sent and received among the Hytera employees; (2) whether they were deleted and by whom; and (3) who had possession of them and during what time frames.

Because this dispute arose at a time in which the only discovery to be completed was related to the statute of limitations and/or the tolling of the same, the court ruled that the discovery sought was irrelevant. According to the Court, an examination of Hytera’s computers could not yield any relevant information concerning when Motorola could have discovered the theft. Further, on the issue of whether or when Hytera may have deleted evidence, and with respect to the statute of limitations and tolling issues, the court stated, “Deleted documents don’t move that meter one way or the other. . . . Motorola never had access to any of Hytera’s computers any more than it does now.”

The court also considered and balanced the request for inspection against the needs of the case and determined that the forensic examination of computers (in China) was disproportionate to the needs of the case because “the burden and expense of the proposed discovery manifestly outweighs its likely benefit” on the issue of the statute of limitations and tolling.

It can be seen in both the Satmodo and Motorola cases that courts do carefully consider relevancy and proportionality when evaluating a motion for a forensic inspection. It can also be seen in both cases that courts generally attempt to balance the privacy concerns of the party holding the devices to be inspected. There is a split in authority about whether forensic examination is considered a “drastic” measure. Some courts believe it is. See, e.g., John B. v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008). Other courts have called forensic telephone examinations, for example, a “minor inconvenience.” Sherman v. Yahoo!, Inc., No. 3:13-cv-00041-GPC-WVG (S.D. Cal. Feb. 20, 2015) specifically disagreed with by Ramos v. Hopele of Fort Lauderdale, LLC, No. 17-621000, 2018 WL 1383188 (S.D. Fla. Mar. 19, 2018) (also denying a request for forensic inspection of a cell phone.)

Practice Tips

If a case involves the potential need for a compelled, forensic collection of an opposing party’s devices, be able to fully and competently explain to the court:

1) how the forensic collection may produce relevant information for a specific issue in the case;

2) why the request is proportional to the needs of the litigation (including addressing which party is bearing the burden for the collection); and

3) the nature of the collection sought, what would be collected and how privacy concerns can be minimized (Are you using the least intrusive method possible?).

In other words, make sure the court is fully educated on both the legal and technical issues in the event it chooses to fashion its own protocol for a collection.

Author: Laurie K. Miller, Member, Health Care Litigation

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