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New Electronic Evidence Case Makes Clear Rummaging Through Hard Drives is Not an Option

May 15, 20073 mins
Data and Information Security

A new case from the U.S. District Court for the Western District of Michigan (Thielen v. Buongiorno USA Inc., W.D. Mich., Case No. 06-16, 2/8/07) has provided some guidance on the question of what happens when a party in litigation gets a court order permitting it to review the contents of an opposing party’s hard drives. 

If the discovery request related to paper documents, the producing party would be able to cull out documents that were irrelevant or that contained attorney-client information or that were subject to some other privilege.  But, if you produce the entire hard drive or permit an image to be created, the producing party would have no ability to narrow the range of information being provided to only the information relevant to the litigation. 

The court in the Thielen litigation addressed just that problem.  As the court put it, unrestricted access would permit “wholesale rummaging” through the hard drive. 

To protect against this “wholesale rummaging,” the court ordered special procedures be used to limit the information disclosed to only information relevant to the litigation.  Specifically, the court directed the requesting party to hire a forensic expert to analyze the producing party’s hard drive to search for and identify evidence relevant to the case.  The forensic expert would conduct their investigation outside the presence of both parties.  When the expert completes the review, he would provide the owner of the hard drive a copy of the proposed findings. The owner would then have a defined period of time to object to the findings and file a request with the court to limit the information being disclosed.  All costs of the expert and their review would be borne by the requesting party.   The courts approach certainly presents a very reasonable approach to this thorny problem.  It is the latest in a series indicating courts are having some serious concerns about granting parties unbridled access to computer systems in litigation.  From the perspective of a party in a litigation, you should understand that making a broad request for access to the other party’s computer systems may backfire, resulting in the other party sending a similar request to you.  This is the MAD (Mutual Assured Destruction) doctrine applied to electronic discovery.  The parties to litigation must not use discovery requests for the other party’s computer systems for fishing expeditions, but for purposes of seeking the production of clearly defined types and categories of information.  To do otherwise, will likely expose both parties to the possibility of MAD.


Michael R. Overly is a partner and intellectual property lawyer with Foley & Lardner LLP where he focuses on drafting and negotiating technology related agreements, software licenses, hardware acquisition, development, disaster recovery, outsourcing agreements, information security agreements, e-commerce agreements, and technology use policies. He counsels clients in the areas of technology acquisition, information security, electronic commerce, and on-line law.

Mr. Overly is a member of the Technology Transactions & Outsourcing and Privacy, Security & Information Management Practices. Mr. Overly is one of the few practicing lawyers who has satisfied the rigorous requirements necessary to obtain the Certified Information System Auditor (CISA), Certified Information Privacy Professional (CIPP), Certified Information Systems Security Professional (CISSP), Information Systems Security Management Professional (ISSMP), Certified Risk and Information System Controls (CRISC) and Certified Outsourcing Professional (COP) certifications.

The opinions expressed in this blog are those of Michael R. Overly and do not necessarily represent those of IDG Communications, Inc., its parent, subsidiary or affiliated companies.

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