The parties continued to argue about their discovery obligations, including the location and timing of depositions and whether the defendants had produced all responsive documents which had been requested. Although defendants had asserted that it has responded fully to the discovery requests, it did not respond to the Plaintiff’s second motion to compel discovery and did not seek a protective order to protect confidential information encompassed by the Plaintiff’s discovery requests. Not surprisingly, the trial court granted the second motion to compel, suggested that defendants submit a protective order for consideration and directed defendants to produce the requested documents or face sanctions. However, defendants again insisted that they had already fully complied with the discovery requests and produced no further documents. Therefore, in November 2007, Plaintiff moved for a default judgment as a discovery sanction. In response, the defendants, “[t]o the extent that they might have withheld any documents, defendants blamed their failure to produce on Plaintiff’s refusal to explain what documents were missing from defendants' response.”
The trial court referred the discovery dispute to a magistrate. Defendants submitted an affidavit in support of their position, but then the information was contradicted by the testimony of their witness, who admitted that the defendants had not produced relevant documents in discovery because of, among other things, confidentiality concerns and the breadth of the discovery requests. Unfortunately, the defendants had never sought a protective order to protect the confidentiality of the information or submitted any objections based on the overbreadth of the discovery requests. Thus, the magistrate found the defendant’s failure to comply with the prior court orders to be willful.
Nonetheless, the magistrate did not order a default judgment for the defendants’ willful disregard of court orders. Instead, he ordered the defendants to produce the documents within 20 days, to pay the Plaintiff’s discovery expenses (i.e., attorney fees) and to “provide, at their own cost: (1) a forensic copy of the computer hard drives of Martin, Citynet's Chief Financial Officer ("CFO"); and Citynet's Chief Operating Officer ("COO"); and (2) any schedule, calendar, .pst file, Outlook application, or PDP application utilized by Martin.” The parties then agreed upon a mutually satisfactory protective order. The trial court then affirmed most of the magistrate’s recommendations over the defendant’s objections:
In sum, the trial court approved and adopted the magistrate's decision with a few relevant caveats. First, the trial court allowed defendants to redact from the forensic copies of the hard drives any privileged material. Second, the trial court permitted defendants to designate personal information contained on the forensic copies for "attorneys' eyes only." Finally, the trial court required Bennett to execute an affidavit confirming that, to the best of his knowledge, he is engaged in no professional activity that is in any way competitive to the business activity of the Citynet entities, that he does not encounter any of the Citynet entities competively in the course of his professional life, and that he otherwise does not engage in competition with any of the Citynet entities. Apparently, the trial court ordered such an affidavit to ensure that Bennett would not use the confidential business information contained in the forensic copies to achieve a competitive advantage over defendants.
The defendants immediately appealed and the Court of Appeals found the discovery order to be a final and appealable order. “[A]ppellate courts have reasoned that as long as an appellant presents a "colorable claim" that the documents subject to a discovery order are privileged and/or confidential, the proceeding that resulted in that order qualifies as a "provisional remedy." Moreover, “[b]ecause information is no longer confidential after dissemination, defendants would not have an effective remedy if forced to delay appeal until after final judgment.”
The Court affirmed the trial court’s sanction in part because of the defendants’ deliberate flaunting of its discovery obligations and of the court’s discovery orders.
A forensic image, or "mirror image," of a hard drive " 'replicates bit for bit, sector for sector, all allocated and unallocated space, including slack space, on a computer hard drive.' " . . . Generally, courts are reluctant to compel forensic imaging, largely due to the risk that the imaging will improperly expose privileged and confidential material contained on the hard drive. Because allowing direct access to a responding party's electronic information system raises issues of privacy and confidentiality, courts must guard against undue intrusiveness. . . .
In the case at bar, [Plaintiff] has demonstrated that defendants repeatedly represented that they had disclosed all responsive documents, when, in fact, they had not. As the magistrate found, such obfuscation displays a willful disregard of the discovery rules and the trial court's orders. Moreover, defendants' last-minute discovery of certain responsive documents indicates that when not outright defying the trial court's orders, defendants adopted a lackadaisical and dilatory approach to providing discovery. Given this background of noncompliance, we cannot conclude that the trial court abused its discretion in ordering defendants to produce forensic copies of the hard drives of Citynet's CEO, CFO, and COO.
In arguing to the contrary, defendants first contend that trial court's order impermissibly allows [Plaintiff] to discover vast amounts of irrelevant information which cannot possibly relate to [Plaintiff’s] age discrimination, retaliation, and breach of contract claims. While defendants may be correct, they fail to appreciate that their own intransigence in the course of discovery justifies the scope of the trial court's order.
Nonetheless, even though the trial court permitted the defendants to redact privileged matters and to designation confidential information “for attorneys’ eyes only,” the Court was still sympathetic about producing confidential and trade secret information directly to Plaintiff, who now worked for one of defendants’ direct competitors. In such cases, sometimes
courts adopt a protocol whereby an independent computer expert, subject to a confidentiality order, creates a forensic image of the computer system. The expert then retrieves any responsive files (including deleted files) from the forensic image, normally using search terms submitted by the plaintiff. The defendant's counsel reviews the responsive files for privilege, creates a privilege log, and turns over the non-privileged files and privilege log to the plaintiff. . . . .
[Plaintiff] deserves a remedy for the prejudice caused by defendants' misconduct, but that remedy should not require defendants to sacrifice highly-sensitive, confidential information that has no bearing on [Plaintiff’s] claims. Additionally, private information of the computers' users—such as personal financial information and communications with friends and family—should not be subject to disclosure. Therefore, we conclude that the trial court abused its discretion in devising the procedure for the forensic imaging. We urge the trial court to adopt a protocol similar to the one described above. We believe that such a protocol would allow [Plaintiff] sufficient access to the computer systems to recover useful information, while also providing defendants with an opportunity to identify and protect privileged and confidential matter.
The discovery sanction and forensic imaging was otherwise affirmed.
Insomniacs can read the full court opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-6195.pdf
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
