Courts Address Preservation of Personal Electronic Device Data
By Christina Michelle Jordan, Litigation News Associate Editor – July 5, 2012

Employees increasingly use home computers and personal cell phones for work-related purposes, creating electronically stored information (ESI) that can be discoverable in litigation. In two recent decisions, courts took different approaches to requiring that this information be preserved.

Trend Favors Preservation of ESI on Personal Electronic Devices
In Redwood v. Urbanik [PDF], plaintiffs claimed that, Urbanik, a former employee, downloaded and retained confidential materials on his personal computer in violation of a confidentiality agreement. Redwood first filed a demand for arbitration and then commenced an action in federal court seeking injunctive relief.

Redwood filed a motion to require Urbanik to preserve the information stored on Urbanik’s computer. Over Urbanik’s objection, the court ordered preservation by “prohibiting [Urbanik] from using the information in question and from erasing any confidential information he may have in his possession, in addition to requiring [Urbanik] to return any information that he may still have.”

The court denied, however, Redwood’s request to require Urbanik to undergo a forensic examination of his personal electronic devices. The court determined that Redwood could not show irreparable harm if an immediate forensic examination was not conducted.

By contrast, the court in United Factory Furniture v. Alterwitz [PDF] granted a request for a preservation order greater in scope. There, the plaintiff alleged that its former employee, Alterwitz, illegally accessed and manipulated company records. This allegedly included sensitive financial information and confidential customer information, and occurred during and after the termination of his employment.

United Factory Furniture believed that the illegal activity was continuing and sought an order under Federal Rule of Civil Procedure 26 requesting preservation of ESI by obtaining a mirror image of the information stored on Alterwitz’s computer. “[S]ince the normal use of computer equipment may cause information to be overwritten and lost, the only way to ensure that further destruction of evidence does not occur is through mirror-imaging,” argued the plaintiff.

In granting relief, the court in United Factory Furniture stated that the “status of and information contained on defendants’ personal/home computers and devices that store electronic information are directly relevant to the instant action and must be preserved.” The court noted that “information describing the history, tracking, or management of an electronic file is usually not apparent via a hard copy or a screen image.” Later production of documents might therefore  not provide the relevant evidence of the activity of Alterwitz’s personal electronic devices.

The court in United Factory Furniture considered how Alterwitz’s private and privileged information would be protected during mirror-imaging. An outside expert would be appointed to create the mirror-image and would not personally view or retain custody of the information. Additionally, the judge ordered that there would be no review of the information in the mirror-image unless plaintiff presented evidence of spoliation.

Determining Means for Preservation of ESI is Fact-Specific
“These two cases are indicative of the nature of the developing jurisprudence in the area of personal electronic devices, and the blurring of lines between the home and office that is occurring in our society,” says Joan Archer, Kansas City, Missouri, cochair of the ABA Section of Litigation’s Pretrial Practice & Discovery Committee. “I think the cases are important because they tackle that issue head on and give us some insight into the types of circumstances in which such preservation is warranted and justified and perhaps other circumstances where it is not so much so.”

Although the cases differ with respect to the means for preserving ESI, the cases can be harmonized in that “both courts took the steps they thought were necessary to preserve the ESI on the defendants’ personal computers and both stopped short of weighing in on what ESI would have to be turned over to the plaintiff,” says Ian H. Fisher, Chicago, cochair of the Section of Litigation’s Pretrial Practice & Discovery Committee. Fisher adds that “the parties in both cases ended up in essentially the exact same place. They ended up with defendants’ evidence being preserved.”

Fisher notes that “the practical difference between the cases is that one court ordered a copy of hard drives made and preserved by a court-appointed officer and the other entrusted the defendants and their counsel to preserve the original.” The reasons why the two cases arrived at their different rulings are very fact-specific according to Fisher. “The judge in the Redwood case seems to have greater faith that a preservation order will be sufficient; the judge seems to trust the defendant. The judge in United Factory Furniture seems more persuaded that the defendants are not trustworthy, or are likely to allow spoliation . . . possibly the court is motivated by allegations and evidence that it had seen,” says Fisher.

Mirror-Image as a Precautionary Standard
Some practitioners argue that courts should order mirror-imaging of personal electronic devices as a standard precautionary measure. “Courts should be mindful of the fact that when an issue involves the possibility of downloaded or deleted information, the record becomes potentially more impure just by virtue of how computers function behind the scenes. Files get overwritten or partially overwritten,” says Archer. “Judges should be more willing to at least order preservation of electronic personal devices.”

Fisher adds “that the Redwood court left the defendant in an interesting position. It’s on the defendant’s head now if he accidentally deletes something. While the United Factory Furniture court’s order went against the defendants and ordered them to preserve everything, the order in many ways relieves the defendants of any concern about accidental deletion.”

Keywords: discovery, preservation, electronically stored information, ESI, forensic copy, mirror image, personal electronic device

 
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