Protection against “Wholesale Rummaging”

Bret Thielen complained that the Blinko service (owned by Buongiorno but take caution in visiting the site) was sending text messages to his cell phone that he didn’t ask for. He was mad enough to sue the company in the Western District of Michigan (download from Thelen Reid Brown Raysman & Steiner LLP blog, found via George Socha’s In Re Discovery blog).

Blinko/Buongiorno insisted that customers must subscribe to its service to receive messages, so they wanted to search through Thielen’s computer hard drive to prove he visited the Blinko site and subscribed to their service. In electronic discovery, this is how forensics can be helpful – a forensics expert can go through a hard drive and re-build the story or timeline of how the events happened (the story metaphor is a favorite of good friend and computer forensics expert Craig Ball).

Judge Brenneman, Jr., however, recognized that giving defendants “unrestricted access” to Thielen’s hard drive would “certainly constitute an undue burden” and would result in a “wholesale rummaging through plaintiff’s filing cabinet.”

Judge Brenneman also lamented:

“‘Unlike the not so distant past, when individual file folders pertaining to specific subjects could be readily identified and removed from a file drawer for inspection without disclosing the rest of the contents of the file cabinet to the opposing side, inspection of an opponent’s computer may open up countless files to the searcher that are not relevant and may be proprietary or privileged.”

The end result was the Judge ordering an “experienced forensic examiner” to look over the hard drive and then provide a “hard copy of his proposed findings to plaintiff’s counsel for review prior to furnishing them to defendant’s counsel.” I am a little confused why the Judge is requesting a “hard copy,” but that is the Judge’s prerogrative.

The lesson here, according to Michael Overlay on the CSO blog is to be careful what you ask for. The other side could just as easily come back and ask for everything resulting in MAD (Mutally Assured Destruction) as applied to electronic discovery.