The plaintiff’s mother in a case in New Orleans, Mary Catherine Hoover, was ordered to produce her laptop, flash drives, and other ESI storage devices to the defendant for forensic inspection. Hoover v. Florida Hydro, Inc., 2008 WL 4467661 (E.D. La. Oct. 1, 2008). The third-party subpoena was enforced even though she was not a party to the suit and had done no wrong. The plaintiff’s best friend from college days was subject to a similar subpoena and order. The decision was rendered by an experienced and highly regarded Magistrate Judge Karen Wells Roby. How could such a thing happen you may well ask? This blog will attempt to fathom the answer and see what lessons can be learned from the decision.
The plaintiff, Mike Hoover, is a graduate of Tulane University Law School and Tulane University Business School. After law school, Mr. Hoover became an expert in new types of hydro-electric power and served as Florida Hydro’s general counsel and environmental director. After several years of employment, Mr. Hoover resigned and sued his former employer for breach of oral agreement and fraud in the inducement. He claimed that the owner of Florida Hydro, a family friend named Herbert L. Williams, had promised him a one-half ownership in the company, which, now that the company was finally successful, he refused to deliver.
As part of Florida Hydro’s defense they subpoenaed Mike’s mother for deposition and:
commanded her to produce and to permit inspection of her laptop computer, flash drive, hard drive, PC or other electronic data storage for documents copied, sent to, or received by her son, Michael Hoover, relating to Florida Hydro, Gulf Stream Energy, Inc., Open Hydro Group, Ltd, OpenHydro, Inc, or Oceana Energy Co .
Not only that, they subpoenaed Mike’s college roommate from Tulane, Shaun Sanghani. Sanghani, like plaintiff’s mom, had no connection to the defendant, and yet he too was served with a third-party subpoena that:
commanded his testimony and the production and inspection of his laptop computer, flash drive, hard drive, PC, or other electronic data storage that has any responsive documents. The subpoena also requested documents, whether in paper form or electronically submitted, between Sanghani and Michael Hoover, and referring to Herbert Williams, Elizabeth “Lisbeth” Olga Deckert, Oceana Engery, and Gulf Stream Energy, Inc.
The plaintiff responded to these unwelcome discovery efforts by filing a motion to quash both subpoenas on the grounds that they were “unwarranted, unduly burdensome” and filed for improper harassment purposes. In other words, Mike Hoover accused the defense of engaging in extremely egregious, over-adversarial discovery tactics. This is just the kind of thing the Sedona Cooperation Proclamation abhors and, as Judge Grimm has shown in Mancia v. Mayflower Textile Services Co., Civ. No. 1:08-CV-00273-CCB (D. Md. October 15, 2008), is prohibited by rule, case law and ethics. See my article: A New Opinion by Judge Grimm Makes the Legal Case for Cooperative Discovery.
Plaintiff insisted that his mother and former college roommate had already produced any responsive material in “hard-copy format” and that Florida Hydro was merely “seeking to engage in a ‘fishing expedition,’ infringing upon the privacy and proprietary interests of his friend, his mother, and himself.” Plaintiff also complained that Florida Hydro had failed to narrow the scope of its subpoenas and:
that the subpoena issued to his mother seeks information which is protected by attorney-client privilege, because he has used and continues to use his mother’s computer to conduct personal business and to correspond with his attorneys. He argues that this risk is too great to mitigate. Hoover also challenges the method that Florida Hydro chose when it issued the subject subpoena and suggests that it should have employed a motion to compel rather than a subpoena duces tecum as its tool to obtain the information sought.
Without reading any further, how would you rule? Would you quash these subpoenas and protect plaintiff’s mom and best friend? Or would you order them to produce all of their computers and ESI storage devices so that the defendant could look around for something relevant?
Defendant’s Argument for Production
There is, of course, always two sides to every story, which is one reason a judge’s job is so challenging. In this case, the other side argued several points, many of them hyper-technical and, in my opinion, not too persuasive. But a few of their arguments obviously had merit, as Judge Roby did enforce the subpoenas, and I will summarize the arguments here. Although Judge Roby ruled in favor of defendant, it was obviously a close question for her too because she took over three months after hearing oral argument to make a decision. Once you hear the arguments you will be presented with another poll to let us know if you change your mind and now agree with Judge Roby’s ruling.
Here is Judge Roby’s summary of the defendant’s best arguments:
Florida Hydro makes three additional contentions: (1) the subpoena requests are not overly broad, harassing, or unduly burdensome, because neither Sanghani nor Mary Catherine objected on the basis of undue burden or hardship; (2) the subpoena is reasonably related to the claims made and temporally limited to the relevant years; and (3) it has tried to make the production easy by arranging to pick up the documents, agreeing to reimburse for expenses incurred, giving multiple extensions, and delaying the depositions.
Persuaded yet? Me neither. But let’s dig deeper into the facts and law as Judge Roby did.
More Facts, Law, and Holding
First as to the law, Judge Roby correctly notes the following black letter rules on third party subpoenas:
*3 Rule 45 governs the issuance of subpoenas, and provides that on timely motion, the issuing court must quash or modify a subpoena if it requires disclosure of privileged or other protected matter, or otherwise subjects the subpoenaed person to undue burden. FED.R.CIV.P. 45(c)(3). Under Rule 45(c)(1), “[a] party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” FED.R.CIV.P. 45(c)(1). Furthermore, Rule 45(c)(3) further provides that “[o]n timely motion, the issuing court must quash or modify a subpoena that … fails to allow a reasonable time to comply.” FED.R.CIV.P. 45(c)(3).
Now as to the facts, it turns out that although the mother and best friend are not parties to the case, the plaintiff intends to use them both as “favorable witnesses whom he intends to call at trial.” Since that is the case, the defense has every right to take their deposition and find out why they are witnesses. But that still does not explain the computers and why they should be produced?
It turns out that Hoover, although a lawyer, alternative energy expert, and business executive, still uses his mother’s computer from time to time to do such things as to “access his email accounts as well as to transact business, including reading correspondence from his attorneys and reviewing their work product.” Hmm. No explanation is provided as to why he does that, but the opinion also notes that the mom, Mary Cathrine Hoover, filed an affidavit in support of the motion to quash “indicating that, from 1999 to 2003, she received multiple phone calls, emails, faxes, and packages of mailed information in Louisiana from Florida Hydro. She further declared that she sent non-disclosure agreements, business plans, pictures, and other information to potential investors.” Not too surprisingly then, Judge Roby concluded from these facts “that Mary Catherine clearly has information relevant to the subject action on her laptop.”
Still, the son argues that his mother has already produced any relevant information she may have had in a paper production of documents previously made to defendant. He argues that the paper production is of the same documents contained in electronic form on her computer. The defendant however does not accept this representation of complete redundancy and further points out that the mother and friend have not personally objected to this production and inspection request. In Judge Roby’s words:
Hoover contends that, in light of the prior compliance with an earlier subpoena which sought the information in paper form, the subpoena requesting access to their personal computers is duplicative and unwarranted, unless Florida Hydro makes a definitive showing that Sanghani and Mary Catherine deliberately failed to fulfill their duties in responding.
Florida Hydro contends that the subpoena is not unduly burdensome, because the third parties have not made such a suggestion. It maintains that it has not violated any rule simply by requesting that these third parties produce electronically stored information.
Judge Roby then goes on to cite the law and make a ruling on the mother’s subpoena:
*5 Rule 34 provides that “[a] person not a party to the action may be compelled to produce documents and things or to submit to an inspection as provided in Rule 45.” FED.R.CIV.P. 34(c). Upon proper objection by a third party to the inspection ordered by a subpoena, the Court must determine whether the plaintiff’s need for the inspection is sufficient to outweigh the burden imposed by the inspection on the third party. Premium Service Corporation v. Sperry & Hutchinson Company, 511 F.2d 225, 229 (9th Cir.1975).
The Court notes that this objection is being made by the plaintiff, Michael Hoover, rather than by the third parties, Sanghani and Mary Catherine. . . .
The Court therefore finds that it is not unduly burdensome for Mary Catherine to comply with the subpoena. The parties may, however, agree upon a search protocol that would prevent personal, family, non-business related communications from being retrieved during the forensic computer inspection of her laptop and/or personal computer. Accordingly, the motion to quash the June 2, 2008 subpoena issued for the production of Mary Catherine Hoover’s computer is denied.
The court does not expressly provide or show what good cause exists for a forensic exam, which is typically required. Hedenburg v. Aramark American Food Services, 2007 U.S. Dist. LEXIS 3443 (W.D. Wash. Jan. 17, 2007); In Re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007). Instead, the court implies that there is a need for this inspection because the mother’s affidavit about all of the things she did to assist in her son’s business strongly suggests that there must be more responsive information on her computer than she has produced in paper form. Further, and this must be the telling point here, the mother herself had not objected, only the son, and it is not his computer. Finally, the defendant here agreed to pay for all of the third party’s expenses and so the only direct burden upon the mother was a very temporary loss of some, but not all, of her computer equipment. (Forensic copies can be made in a few hours.) I say some, but not all of the mother’s computers must be produced, because in a later section of the order the court clarifies that the motion to quash was granted as to the mother’s personal computer, but denied it as to her laptop computer and peripherals. There was no explanation, but I suspect this was because the facts showed the son had only used her laptop computer and not her PC.
The court took pains to protect the mother’s privacy interests and so prevent burden to her from such intrusion. Judge Roby held that the parties must agree upon an appropriate inspection protocol to protect the mother’s interests, and that failing such agreement, she would rule on any issues before the inspection commenced.
The son had also objected to the production of his mother’s computers because it might reveal attorney-client protected communications that he had had with his lawyers while using her laptop. The Court accepted his right to preserve these privileged communications, but did not sustain the objection to production on this basis. The court instead required the parties to develop a search and review protocol that would protect disclosure of these communications to the defendant.
The Court is not persuaded that the electronic search could not be configured so as to exclude these communications or Michael Hoover’s non-business communications between he and his mother.
The court expects the parties to agree on a Playboy Enterprises type protocol to protect the mother’s and plaintiff’s privacy and privilege rights. Playboy Enterprises, Inc. v. Welles, 60 F.Supp.2d 1050, 1054-55 (S.D. Cal.1999). The court only expects the relatively narrow band of non-privileged ESI to be produced, namely “documents copied, sent to, or received by her son, Michael Hoover, relating to Florida Hydro, Gulf Stream Energy, Inc., Open Hydro Group, Ltd., Open Hydro, Inc., or Oceana Energy Co.” If Hoover was correct in his representations, this should be a very small set of ESI documents that the defendant will already have received in paper form.
You may well wonder what happened to the motion to quash the friend’s subpoena? The judge near the end of the opinion points out for the first time that the friend’s subpoena had already been challenged in another district court where he resided, and so, since “the Court is not aware of any defect in his responses which require further compliance with the order from our sister court. In the absence of such a showing, the motion to quash the May 30, 2008 subpoena issued for the production of Shaun Sanghani’s computer is granted.”
How Would You Rule Now?
Time for another poll. Have you changed your mind now that you have heard the whole story and you know about: (1) the son’s extensive use of his mother’s laptop computer; (2) the mother’s involvement in his business; (3) the fact that the plaintiff has designated his mother as a witness he intends to call at trial; (4) the mother has not objected to the inspection; (5) the mother will not have to pay any costs; and, (6) a search and review protocol will be used that protects the mother and plaintiff’s privacy rights and limit the production to the narrow scope of non-privileged documents requested?
If you were the District Court Judge hearing an appeal of the Magistrate’s order, how would you rule?
One clear lesson to learn from this decision is to have your third-party witness file their own timely objection upon being served with a subpoena. That was a significant factor here. By all appearances the mother did not really care if her laptop was inspected or not. Only the son seemed to care and it was not his laptop. If the mother and son really did not want to have the laptop and other ESI storage devices subject to forensic inspection, they should have both objected loud and clear from the start. They should have stated in substantial detail the many reasons they had for the highly intrusive inspection. They should also have advised the judge on the case law requiring a showing of good cause before such inspection is allowed. The rules only intend for parties, or third-parties, to make production of the ESI stored on electronic devices, not the devices themselves. The actual devices should only be subject to inspection in unusual cases where you can prove that the parties search and production has not been reasonably or honestly performed or other even more rare circumstances. See: Peskoff v. Faber, 2008 WL 2649506 (D.D.C. July 7, 2008); Bro-Tech Corp. v. Thermax, Inc., 2008 WL 724627 (E.D. Pa. March 17, 2008); Sterle v. Elizabeth Arden, Inc., 2008 WL 961216 (D. Conn. Apr. 9, 2008); Xpel Technologies Corp. v. Am. Filter Film Distribs; 2008 WL 744837 (W.D. Tex. Mar. 17, 2008); Henry v. Quicken Loans, Inc., 2008 WL 474127 (E.D. Mich. Feb. 15, 2008); In Re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007); Coburn v. PN II, Inc., 2008 WL 879746 (D. Nev. Mar. 28, 2008); Ferron v. Search Cactus, LLC, 2008 WL 1902499 (S.D. Ohio Apr. 28, 2008); Johnson v. Wells Fargo Home Mortgage, Inc., 2008 WL 2142219 (D. Nev. May 16, 2008); Anadarko Petroleum Corp. v. Davis, 2006 WL 3837518 (S.D. Tex., Dec. 28, 2006); Hedenburg v. Aramark American Food Services, 2007 U.S. Dist. LEXIS 3443 (W.D. Wash. Jan. 17, 2007); In re Ford Motor Co., 345 F.3d 1315, 1316 (11th Cir. 2003); Ameriwood v. Liberman, 2006 WL 3825291, 2006 U.S. Dist. LEXIS 93380 (E.D. Mo., Dec. 27, 2006); Menke v. Broward County School Board, 916 S.2d 8 (Fl. 4th DCA, 2005). Also see my prior articles: Sherlock Holmes in the Twenty-First Century and “Book ‘em Danno”.
If there was a motion to compel production after the objections, or perhaps even earlier to further support the objections, the subpoenaed person, and/or the party, could submit affidavits confirming that a diligent, good faith search had already been made of these devices. They could describe in detail everything they did to try to locate and produce the ESI requested. They could then have confirmed under oath that all requested information had already been produced. If necessary, they could have further substantiated this reasonable search and prior production with an affidavit or testimony of a third party expert. If any of this had been done, I think we would have had a different result here.
Of course, another lesson to be learned here is not to subject your friends and relatives to possible later subpoena and deposition by using their computers, instead of your own, to conduct important business. Don’t borrow your mother’s laptop, bring your own, and by all means, don’t call her as a witness at trial unless you absolutely have to. I don’t know about you, but if I were this guy’s parent, I’d be pissed!