Summary
sustaining objections to production of phone and computer
Summary of this case from Par Pharm., Inc. v. Quva Pharma, Inc.Opinion
No. CV09-5012548
December 14, 2010
Memorandum of Decision on Plaintiff's Objections to Defendant's Requests for Inspection of Plaintiff's Computer (Nos. 167 194)
This is an action by the parents and the estate of Stephen J. Squeo, deceased, against the Norwalk Hospital and a nurse practitioner at the hospital. The first count is a wrongful death claim brought by the estate fiduciary claiming professional negligence. The second count is brought by the parents individually, claiming bystander emotional distress.
The underlying facts are that Stephen Squeo, who suffered from schizophrenia and substance abuse with a history of suicide attempts, lived with his parents at their home in Norwalk. On August 14, 2007 the parents called the Norwalk Police Department to report that their son was suicidal. Upon arrival at the home the police observed the parents running from the residence and pointing to Kendall School. They informed the officers that their son had run to the rear of the school carrying an electrical type cord. The officers apprehended Stephen Squeo and had him taken by ambulance for psychiatric evaluation at Norwalk Hospital where he had received psychiatric treatment since August of 2004 allegedly including instances where he had used illegal drugs and had attempted suicide. He was admitted to the hospital at 10:53 p.m. on August 14 and underwent a psychiatric assessment by a nurse practitioner. Stephen was released from the hospital the following morning. He walked alone to his parent's home where he hanged himself by a cord from a tree resulting in his death after the parents had found him and cut him down.
The issues presently to be decided concern the defendants' requests for discovery relating to the claim of damages in the wrongful death count that "Stephen Squeo has lost the ability to enjoy life's pleasures due to his death." Claiming that the plaintiffs have raised as an issue in this case the decedent's quality of life given his long psychiatric history and issues involving illegal drug usage, the defendants posed interrogatories seeking information about Stephen's cell phone and email usage and computer access on or before the date of his death. The parents answered that Stephen did have his own cell phone and provided the requested information about that account, and did not have access to any other cell phone. They said that he did not have his cell phone with him on the date of his death. They also answered that Stephen had "access to parent's computer but rarely used it," and had his own AOL email account, and provided the email address.
Defendants then requested production of Stephen's cell phone and the parent's computer "for purposes of a forensic inspection, examination and analysis, including the non-destructive retrieval of electronic data, by the defendants' forensic computer experts." Now before the court are the plaintiffs' objection (No. 167) and supplemental objection (No. 194) to those discovery requests on the ground that they violate the parents' privacy, force the parents to sacrifice their constitutional right to privacy as the price for access to their constitutional right to access to a judicial remedy, border on harassment, serve no legitimate purpose, amount to a fishing expedition, lack a good faith or probable cause basis that the information sought is material and necessary, and are not reasonably calculated to lead to the discovery of admissible evidence. The defendants claim the information in the computer is necessary because the plaintiff is deceased and no longer available to provide information about his enjoyment of life's activities, which has been put in issue. Since the parents have disclaimed in interrogatory answers any knowledge of any statements by the decedent bearing on the issue of his quality of life, they should be allowed access to his emails as the only available source of information about his habits, routines, hobbies, activities and statements "which collectively can paint a picture of a person's life."
Plaintiffs' initial objection of May 6, 2010 quotes both of the defendants' requests for production in identical language as seeking to inspect and examine the cell phone, without reference to requesting the computer. This appears to be a typographical error as the briefing of both parties primarily goes to a request to examine the plaintiff parents' computer. In fact, the cell phone seems not to be an issue in that the parents state in their brief that they do not know where the cell phone is. The court will therefore discuss the objections as opposing any request to inspect and forensically examine the parents' computer, but the court's ruling will be applicable to both the request for the computer and the cell phone, since the concepts are the same.
Plaintiffs who put their physical or emotional health at issue, or their loss of consortium, are often required to disclose facts of a very private and sensitive nature. For that reason the rules of practice allow for protective orders limiting access to such private facts learned in discovery, or even, upon a proper showing following a hearing, to have such matters filed in court under seal. But the problem with this discovery request is that the source of information sought is a computer not owned by the person whose life's activities are at issue, but by his parents who allowed that person, their son Stephen, to use their computer and to maintain an email account on that computer, which he reportedly rarely used. But the request to inspect and do a forensic examination of the computer is not limited to Stephen's use of the computer or his sent and received emails during any relevant time period. What this means is that defendants' totally unlimited request would provide access to all the parents' stored information including possibly such things as their personal emails with friends and family, their documents and pictures, their address book, their shopping history and credit card numbers, employment or business communications, banking and investment information, tax returns, privileged attorney-client communications, possibly incriminating information, indeed every key stroke made on that computer since the day it came out of its carton. In the pre-electronic age, this would be the equivalent of requesting the opposing party to deliver all its filing cabinets to the adversary's office and allow unrestricted access to every single letter or document filed therein. That request would clearly be overly broad. So, also, is this electronic-age request by the defendants herein, for ". . . discovery of electronically stored information stands on equal footing with discovery of paper documents." Fed.R.Civ.P. 34 Advisory Committee's Note on 2006 Amendments.
The court has observed at a seminar a demonstration of a forensic examination of a personal computer and has doubts that any kind of examination limited to particular subjects or time periods would be technically possible. If that would be possible, however, defendants have not offered to limit their examinations in any way.
This court agrees with other courts which have held that discovery and forensic examination of an adversary's computer is generally disallowed at least in the absence of any showing that the adversary would not search the computer for relevant documents and produce them in paper form. In Olah v. Brooklawn Country Club, Docket No. CV06-4007321S, Superior Court, Judicial District of Ansonia-Milford (November 5, 2007, Ronan, J.), 2007WL 4111410, 44 Conn. L. Rptr. 413, the court sustained an employee's objection to the defendant-employer's request to examine the plaintiff's computer, saying that ". . . courts are reluctant to grant a party access to an opposing party's personal computer." Id. at *2. The case cited by Judge Ronan is Geer v. The Gilman Corp., United States District Court, Docket No. 3:06 CV 889 (D.Conn. February 2, 2007, holding that defendant may not investigate plaintiff's computer because such action would be overly drastic under the circumstances. Federal and state courts outside Connecticut are in accord. See, Scotts Co. LLC v. Liberty Mutual Ins. Co., Civil Action No. 2:06-CV-899 (June 12, 2007, USDC, S.D. Ohio) 2007 WL 1723509 ("This court is therefore loathe to sanction intrusive examination of an opponent's computer as a matter of course, or on the mere suspicion that the opponent may be withholding discoverable information"); Williams v. Mass Mutual Life Ins. Co., 226 F.R.D. 144, 146 (D.Mass. 2005 (denying motion to appoint computer forensic expert because moving party failed to present any "credible evidence that Defendants are unwilling to produce computer-generated documents"); Bethea v. Comcast, 218 F.R.D. 328, 329-30, (D.D.C. 2003) (denying motion to compel because "[i]n the context of computer systems and computer records, inspection or seizure is not permitted unless the moving party can demonstrate that the documents they seek to compel do, in fact, exist and are being unlawfully withheld"); In Re Ford Motor Company, 345 F.3d 1315, 1317 (11th Cir. 2003) (Mandamus granted directing District Court to vacate an order allowing tort claimant direct access to Ford Motor Co. databases.); and Holland v. Barfield, Case No. 5D09-3828 (Florida App. May 7, 2010) where the Florida court specifically reversed an order allowing for unrestricted access to a computer and cell phone.
The order sought by the defendants herein is too broad, being unlimited in time or subject matter or privileged status, and lacks any probable showing that there is anything actually stored on the parents' computer which would be relevant to this case or lead to the discovery of admissible evidence, or that plaintiffs would be unable or unwilling to disclose any such information if it does exist on their computer. For those reasons the plaintiffs' objections to the defendants' requests to produce are sustained.
So Ordered.