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Court Rules Handing Over iPhone Outside Scope of eDiscovery Requests

Posted on December 14th, 2012

In AllianceBernstein L.P. v. Atha, (2012 NY Slip Op 07766)(Nov. 15, 2012), plaintiff was an investment firm alleging breach of contract and misappropriation of confidential information by the defendant, a former employee. As part of the suit, plaintiff secured a temporary restraining order (TRO) preventing defendant from retaining or using any of its confidential information. In a deposition, the employee admitted to having confidential information on his personal cell phone.

Plaintiff served a request for the data stored on the employee’s iPhone.  The employee objected that the request was overbroad and invaded his privacy.  After submitting a letter to the court stating an eDiscovery dispute had arisen, and without giving defendant an opportunity to respond, the court directed defendant to immediately hand over the physical iPhone to plaintiff trial attorneys to comply with the TRO.

The Court of Appeal found two main problems with this order. First, the lower court should have afforded defendant an opportunity to respond to the informal complaint about the eDiscovery dispute. Second, the Court of Appeal held that ordering defendant to turn over the physical telephone was beyond the scope of the plaintiff ESI production request. The Court recognized that a smartphone is in essence a personal computer—and ordering him to produce this would disclose irrelevant information, including privileged communications or confidential data.

However, the Court of Appeal did not reverse the ruling regarding the iPhone in its entirety. The Court ruled that the iPhone and a record of its contents be delivered to the lower court for an in camera review to determine what electronic data was responsive to the plaintiff eDiscovery requests.

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