Forensic Fishing Expedition Rejected

Fishing ExpeditionAn employer recently tried to use e-discovery to its advantage, but did so in an unconvincing fashion, and failed. The district court rejected its motion to compel the forensic examination of the plaintiff’s home computer as a mere “fishing expedition.” Hedenburg v. Aramark American Food Services, 2007 U.S. Dist. LEXIS 3443 (W.D. Wash. Jan. 17, 2007).

Hedenburg is an employment discrimination case where the employer sought a mirror image of the employee’s personal computers. The employer wanted the cloned drives examined by a computer forensic expert serving as a special master. The forensic master would then prepare a report with built-in privacy safeguards to protect the employee’s non-responsive and privileged ESI along the lines set forth in Playboy Enterprises v. Welles, 60 F. Supp.2d 1050 (S.D. Cal. 1999).

The employer argued that forensic examinations of employee’s personal computers are common in employment cases, and was needed here to search for personal emails and web posts that might be inconsistent with plaintiff’s claims of sexual discrimination and emotional distress. The defendant, however, failed to establish valid factual grounds for the intrusive discovery requested, and so the Court easily distinguished the cases defendant relied upon, including the seminal Playboy case. Playboy was distinguished because the defendant in Hedenburg made no convincing showing that the forensic exam was likely to uncover discoverable evidence, and further failed to show any kind of nexus between the claim and the computers sought to be examined.

The three cases which the employer here choose to argue were interpreted and rejected by the court as follows:

The common thread of these cases is that a thorough search of an adversary’s computer is sometimes permitted where the contents of the computer go to the heart of the case. This court has in other cases permitted mirror image searches of computers where, for example, one party demonstrates the likelihood that trade secrets were forwarded to or sent by it. Here, the central claims in the case are wholly unrelated to the contents of plaintiff’s computer. Defendant is hoping blindly to find something useful in its impeachment of the plaintiff.

Blind hope may be a fisherman’s credo, but it is never good grounds for a forensic examination. The court concluded with an analogy of a paper files search equivalent of the electronic discovery here requested:

Plaintiff has responded that she has made a diligent search for her computer files, and contends that she does not have additional information. 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 Motion to Compel is DENIED.

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