Would You Make Them Pry Your Laptop From Your Cold, Dead Hands?

November 18, 2008

Does the thought of a judge ordering you to allow a total stranger to make a copy of your entire laptop, down to the very last bit, send a chill down your spine?

Or does the possibility strike you as too implausible to worry about?

A federal judge in Louisiana has ordered just that in the case of Hoover v. Florida Hydro, Inc., 2008 U.S. Dist. LEXIS 87839. In the contract dispute, the defendant subpoenaed the plaintiff’s mother and former college roommate, demanding that each produce for inspection various computers and storage media.

The plaintiff moved to quash the subpoenas, but the court rejected arguments that the subpoenas were unduly burdensome and that the various media contained privileged communication between the plaintiff and his attorneys.

The court did acquiesce to the plaintiff’s suggestion that the defendant produce a search protocol to be approved by the court in advance of the inspections. The defendant was also required to execute a confidentiality agreement prior to the inspections.

I’m loathe to critique litigation strategy without a full understanding of the relevant facts, but it’s difficult to read the opinion without wondering whether arguments of undue burden made by the mother and former roommate would have been better received.

Another interesting aspect of the opinion is that the court seemingly did not require any showing on the part of the defendant that a forensic examination was necessary. Ordinarily, the producing party is allowed to produce duplicates of responsive electronic data rather than provide direct access to its media. The clear trend among courts across the country is not to authorize direct access to media absent at least some evidence that the producing party has failed to discharge its production obligations.

The court did order the defendant to reimburse the mother and former roommate for all costs of the inspections, including attorney’s fees, and for any damage caused by the inspection.

The opinion was silent as to whether the mother and former roommate could seek reimbursement for any treatment necessary to stop the chills from running up and down their spines.