You Want Discovery of an Adversary’s Computer? Better Have a Good Reason.

That was the lesson of a recent case out of the New York State Supreme Court, Nassau County, where the court refused to order a forensic examination of a plaintiff’s personal computer hard drive.

DeRiggi v. Krischen arose out of the death of a woman during a routine surgical procedure to treat lower back pain. Plaintiffs alleged that her death was the result of perforation of the left common iliac vein by a “Spine Jet HydroDisectomy” system utilized during the procedure. Plaintiffs further alleged, among other things, that the manufacturer of the system misrepresented the risks affiliated with its use, and one of the plaintiffs, the decedent’s husband, testified at deposition that he and his wife visited the manufacturer’s website prior to the surgery and read that the procedure “felt like a bee sting and nothing more.”

Based on that testimony, the manufacturer defendant sought a forensic examination of the plaintiff husband’s personal computer hard drive to ascertain whether he and his wife had in fact visited the manufacturer’s website. The defendant was willing to stipulate that only its expert forensic analyst would view the contents of the hard drive, that the expert would sign a nondisclosure and confidentiality agreement regarding the exam, and that the only information that would be disclosed regarding the exam was a ‘yes’ or ‘no’ in response to whether the computer was used to visit the manufacturer’s website prior to the July 2008 procedure.

The court was not persuaded by defendant’s assurances. It was undisputed that examination of plaintiffs’ hard drive could not definitively establish that plaintiffs had not visited the site since the absence of that evidence could just as likely be due to data having been overwritten in the 2 plus years since the website was allegedly visited. While this alone may have been sufficient for denial of defendant’s discovery motion, the court went further and found that the defendant failed to establish that the information sought was material and necessary to the defense of the action. The court also pointed out that plaintiff used the computer to communicate with his attorney and thus discovery of the hard drive presented a risk to the confidentiality of attorney-client communications.

DeRiggi illustrates the balancing courts regularly perform between the policy for liberal discovery and countervailing privacy and confidentiality concerns. Where the risks are substantial and the returns questionable, courts are hesitant to order the discovery. At the very least, a party seeking intrusive discovery should be able to articulate the reasons why such discovery is material and necessary to their case.

Paul E. Asfendis is an Associate on the Gibbons E-Discovery Task Force.
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