A recent decision ordering the production and imaging of an entire personal laptop provides guidance as to when such a drastic measure is appropriate. This decision serves as a reminder that discovery is meant to allow parties broad access to information that is relevant to any party’s claim or defense, and that the consequences of not complying with appropriate discovery requests for electronically stored information (ESI) can lead to significantly more intrusive discovery being ordered against the producing party.   

Our team routinely provides supported and defensible advice on the reasonableness and proportionality of ESI requests and negotiates minimally invasive ESI protocols that meet our clients’ litigation needs.

The plaintiff in Kosmicki Investment Services LLC v. Duran, C.A. No. 1:21-cv-03488-DDD-SBP, 2023 WL 4899541(D. Colo. Aug. 1, 2023), a financial services firm, employed the defendant for approximately two years, during which time he had access to highly confidential information, including the plaintiff’s know-how and intellectual property as well as the personal and financial information of its clients. The plaintiff sued the defendant, alleging that the defendant impermissibly continued to access and download highly confidential information after his termination. The plaintiff asserted a claim under the Computer Fraud and Abuse Act, a criminal statute that provides a private right of action, as well as claims for conversion and civil theft under Colorado state law.

During a previous discovery dispute in the case, the plaintiff sought to compel the production of a hard drive for the purpose of determining whether the defendant had impermissibly downloaded and retained the plaintiff’s electronic records, and the magistrate judge ultimately ordered the production of the hard drive for a forensic examination. A subsequent review by a special master of the documents stored on the hard drive revealed that the vast majority of these documents were properly characterized as the property of the plaintiff and were not subject to privilege or work-product, as the defendant had claimed.

In its current motion to compel, the plaintiff sought the production of the defendant’s personal laptop for inspection to determine whether it, too, contained any of its confidential information. The plaintiff argued that the laptop was covered by the magistrate judge’s order because the defendant admitted using the laptop in conjunction with the hard drive.

The defendant argued that he should not be required to produce his personal laptop because:

• the plaintiff did not point to any specific documents from the hard drive that could arguably be found on the laptop;
• the defendant was confident he would win summary judgment in this case; and
• the laptop contained the defendant’s personal and business information that was not related to this matter, and it would unduly burden the defendant to be without the laptop for an extended period of time. 

In siding with the plaintiffs, the court cited Federal Rule of Civil Procedure 26(b)(1), which allows parties to obtain discovery regarding any nonprivileged matter that is relevant to any claim or defense in the case and that is proportional to the needs of the case. The court noted that discovery should not be conflated with a pre-determination of the merits of any claim or defense. The court also stressed that relevance is to be broadly construed and a request is considered relevant if there is any possibility that the information requested may be relevant to the case.

With respect to relevance, the court found:

• the record clearly established that the laptop might have contained relevant information in view of the special master’s findings that the hard drive contained such information;
•  the contents of the laptop went to the very essence of the dispute in this case;
• the defendant’s own representations about how he had used the laptop emphasized the relevance of the information contained on this device; and
• a separate investigation of the laptop was necessary because the plaintiff had alleged that the defendant downloaded the plaintiff’s documents to this laptop without saving them to the hard drive and the defendant did not categorically deny such a possibility.

With respect to proportionality, the court weighed the factors outlined in Rule 26(b)(1):

• the importance of the discovery to the issues in the case;
• the amount in controversy;
•  the parties’ resources;
• the importance of discovery in resolving the issues; and
• whether the burden of the proposed discovery outweighed the likely benefit.

While finding that these factors weighed in the plaintiff’s favor, the court was sensitive to the inconvenience that the defendant would experience by being deprived of his personal laptop. Therefore, the court directed the parties to implement an ESI protocol for the imaging of the laptop quickly and with as little inconvenience to the defendant as possible.