An Ohio appellate court recently overturned a trial court’s order that compelled the production and forensic examination of a non-party witness’s computers, hard drives, and cell phones because “a trial court abuses its discretion when it permits forensic imaging of electronic devices without first a showing that there has been a background of noncompliance with discovery and the need for forensic imaging outweighs the party’s privacy interests.” Scott Process Systems, Inc. v. Mitchell, 2012-Ohio-5971, ¶38 (Ohio Ct. App. Dec. 17, 2012). Because forensic imaging (or “mirror imaging”) of a hard drive replicates “bit for bit, sector for sector, all allocated and unallocated space, including slack space,” on the drive, a non-party witness’s privacy and confidentiality concerns must be carefully balanced against the requesting party’s discovery interests and need for the imaging. Id. at ¶¶28-29.
Other courts also have applied a balancing test in the context of civil discovery to determine whether the forensic imaging of a party’s electronic devices is justified under the circumstances. See, e.g., Wynmoor Community Council, Inc. v. QBE Insurance Corporation, 280 F.R.D. 681, 687 (S.D. Fla. 2012) (ordering forensic examination of the plaintiffs’ computers because they were either unwilling or unable to conduct a search of their computers systems for responsive documents); Musket Corp. v. Star Fuel of Oklahoma, LLC, No. CIV-11-444 (W.D. Okla. Sep. 21, 2012) (disallowing forensic examination of hard drive after stating that “[d]irect inspection of an opponent’s hard drive is not routine and may be justified only in certain circumstances,” and that when ordered such inspections must be done under “specific protocols that would preserve claims of attorney-client privilege and protection of the confidentiality of personal information”); Nithiananthan v. Toirac, 2012-Ohio-431 (Ohio App. Feb. 6, 2012) (overturning order for forensic examination of a party’s personal computers because the record failed to support a finding of “a history of discovery violations” by the party); see also Scentsy, Inc., v. B.R. Chase, LLC, No. 1:11-cv-00249 (D. Idaho Oct. 2, 2012) (denying motion to compel forensic examination of the plaintiff’s computer system because of the undue burden and cost of the examination even though the plaintiff implemented an insufficient litigation hold).

In Scott Process Systems, the plaintiff served a subpoena duces tecum on a non-party witness in a non-compete case that required the witness to produce for forensic imaging all computers, computer hard drives, and cell phones he used during a seven-month period. After the trial court denied the non-party witness’s motion to quash and granted the plaintiff’s motion to compel, the witness appealed.

The appellate court found as a threshold matter that it could review the trial court’s order as a final, appealable order in part because it involved the discovery of confidential information. The appellate court then agreed with the non-party witness that the trial court improperly ordered him to produce his electronic devices for forensic imaging. “Generally, courts are reluctant to compel forensic imaging, largely due to the risk that the imaging will improperly expose privileged and confidential material contained on the hard drive.” Scott Process Systems, 2012-Ohio-5971, ¶29 (quoting Bennett v. Martin, 928 N.E.2d 763 (Ohio Ct. App. 2009)). Accordingly, in order to “guard against undue intrusiveness to a party’s privacy and confidentiality,” a court must conduct a two-part analysis to determine whether forensic imaging is warranted as opposed to other discovery procedures. Id. at ¶¶28-29.

Pursuant to the two-part analysis, a court must first weigh a responding party’s significant privacy and confidentiality concerns against the necessity of the imaging. In balancing these interests, a court should consider whether the responding party has improperly withheld requested information, whether the responding party is unable or unwilling to search for the requested information, and the extent to which the responding party has complied with discovery requests. The appellate court found that these factors weighed against imaging because there was no “history of continuous and blatant discovery violations” that tipped the scales in favor of compelling it. Id. at ¶¶32-33.

The second part of the analysis requires a court to “protect the party’s confidential information, even if the party’s misconduct in discovery makes forensic imaging appropriate.” Id. at ¶35. Here, the appellate court found that the trial abused its discretion by failing to “set forth a protective protocol to ensure forensic imaging was not unduly intrusive” and to preserve any private and privileged information. Id. at ¶35. Based on these findings, the appellate court concluded that the trial court abused its discretion in ordering the non-party witness to submit his electronic devices for forensic imaging without first conducting the two-part analysis and therefore reversed the trial court’s decision. Id. at ¶43.