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Plaintiff Permitted to View Image of Non-Party’s Computer in Business Torts Case

Posted on July 3rd, 2017

Non-party computerIn Legacy Data Access, LLC v. Mediquant, Inc., Case No. 17-00069 (W.D. N.C., May 22, 2017), Plaintiff sued Defendant in the Western District of North Carolina for various business torts after Defendant allegedly poached several of Plaintiff’s former employees.  In January 2017, Plaintiff served a subpoena upon one of its former employees, William Rowland, a Georgia resident. Rowland objected to the subpoena, and Plaintiff filed an emergency motion in the Northern District of Georgia to compel compliance. The Georgia court directed the parties to negotiate, and the parties agreed to a protocol whereby the Georgia court permitted Plaintiff to search Rowland’s electronic devices for ten search terms. A computer forensic examiner imaged and examined Rowland’s computer, and his report indicates that of the ten search terms requested, three terms brought relevant and non-privileged hits. Plaintiff then requested that the trial in North Carolina continue to allow further investigation into the computer. The North Carolina court then moved trial to July. However, Rowland refused to release the copy of the forensic image, and Plaintiff filed a Motion to Compel Compliance in the Georgia court. Rowland responded, and the Georgia court transferred the Motion to North Carolina.

The judge in North Carolina ordered Rowland to release a copy of the forensic examiner’s image of his computer to comply with its previous order. Rowland filed a Motion for Reconsideration, arguing that North Carolina did not have jurisdiction, as the Georgia court did not reopen its case prior to transferring the Motion to North Carolina. He also argued that he was not present at the court hearing in March when he was ordered to release the image.

The court disagreed with Rowland on both issues. First, the court found that the Georgia court effectively reopened the case when it transferred the Motion. Second, the court stated that in coming to it decision in entering the March order, it considered Rowland’s privacy interests even though he was not present. Further, when it entered the May 17 order, Rowland now sought it to reconsider, the court reviewed and considered the arguments Rowland had presented in Georgia, which were now “mirrored” in the Motion to Reconsider.

Finally, Rowland argued that the discovery rules did not permit Plaintiff to examine the image of his non-party computer. The court also disagreed on that point, as the computer itself was “at the heart of the litigation” and therefore, the information was “plainly relevant.” The image here was subject to a protective order and was for “attorney’s eyes only” and was limited to information he stored there from his time at Plaintiff. The experts were to destroy the images after examination. The court found that his privacy interests were adequately protected and that Plaintiff had the right to examine the image.

ILS – Plaintiff ESI Discovery Experts

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