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Should Personal Cell Phones be off the eDiscovery Radar? – Case Law Update

In a trade secret case, a federal district court orders the imaging of employees’ work laptops, but not their personal cellphones.

November 29, 2023 — by Joe Tate, Member and Managing Director, and Nicole Gill, Counsel, CODISCOVR

In a trade secret case, a federal district court orders the imaging of employees’ work laptops, but not their personal cellphones. 

The U.S. District Court for the District of Kansas granted in part a plaintiff’s emergency motion for expedited discovery to allow forensic imaging of the defendant’s employees’ laptops to search for evidence of trade secret misappropriation, but denied the plaintiff’s request to image the employees’ cell phones, finding it overly broad, unduly burdensome, and unduly intrusive.

We offer a full array of forensic tools to assist with ESI collections and ensure our collections are completed in a forensically sound and defensible manner with minimal disruption to the client.

The plaintiff in Ainstein AI, Inc. v. ADAC Plastics, Inc., No. 23-2166-DDC-TJJ, 2023 WL 3568661 (D. Kan. May 19, 2023), a developer of radar technology, entered a joint venture with the defendant, a supplier of automotive technology, to design and manufacture radar-based systems for use in the automotive industry. After the business relationship between the parties soured, the plaintiff attempted to revoke the defendant’s access to a shared Google Drive containing the plaintiff’s intellectual property. The plaintiff alleged that several of the defendant’s employees accessed the Google Drive without its permission, and sued for misappropriation of trade secrets and related causes of action. The defendant admitted that its employees downloaded the material at issue, but argued they were permitted to do so under the joint venture agreement.

The plaintiff brought an emergency motion for expedited discovery, seeking a forensic examination of the computers, storage devices, and cellphones of several of the defendant’s employees. The plaintiff argued that expedited discovery was necessary to preserve evidence of misappropriation of the trade secret files.

First, the Court found that the plaintiff demonstrated good cause for expedited discovery, in part because getting the most out of forensic investigation requires either examining the devices at issue as soon as possible or disallowing use of the devices until imaging can be completed.

Second, the Court granted the plaintiff’s request for the forensic imaging of the work computers and storage devices utilized by the defendant’s employees at issue, finding:

  •  the defendant did not deny its employees downloaded the material; and
  • forensic imaging would preserve information necessary to determine which files were accessed and when; where they exist on a hard drive; whether the files were modified to generate new files; and potentially whether deletions occurred, all of which were relevant to plaintiff’s case.

Third, the Court denied the plaintiff’s request for forensic imaging of the employees’ personal cell phones, finding:

  •  it was undisputed that the employees did not have separate work and personal cell phones (only personal cell phones);
  • it was unclear whether and to what extent the cell phones were actually used for work purposes;
  • personal cell phones likely contain a tremendous volume of irrelevant, private information; and
  • the plaintiff did not explain why it was necessary to conduct an inspection of the employees’ cell phones in addition to their computers and storage devices.

The court further explained that the request for the individuals to produce their cell phones to a third-party for an unspecified amount of time was overly burdensome, and it questioned whether the cell phones were even in the defendant’s possession, custody, or control such that it could be compelled to produce them for imaging.

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