When Do Private, Personal Devices Become Discoverable During Litigation?

When Do Private, Personal Devices Become Discoverable During Litigation?

Last summer the District Court for the Northern District of Illinois decided a case that allows your old boss into your home.  Well . . . not literally.  Magistrate Judge Geraldine Soat Brown granted a motion to compel discovery for a plaintiff-employer over objection of defendant-employee.  The plaintiff, Network Cargo Systems U.S.A., Inc. claimed that its former employee, Caroline Pappas, stole proprietary technology and destroyed other electronic data upon termination.  Plaintiff denied the request, and consented to limited discovery.  After expedited discovery took place, plaintiff returned to the court requesting that an independent technology investigator be granted access to all of Ms. Pappas’s electronic devices.

The court ordered defendant’s counsel to “determine what electronic devices [Pappas] used between 4/1/13 [2 months before termination] and 2/14/14 [the hearing date].” Network Cargo Sys. U.S.A., Inc. v. Pappas, No. 2014 WL 1856773 *2 (N.D. Ill. May 7, 2014).  A week later, counsel indicated six devices: two personal computers, an iPad, an iPhone, a Blackberry (which was returned to Network), and a work laptop provided by defendant’s new employer.

After the court’s order, the parties agreed to split the cost of imaging three personal devices: the personal computers and the iPad.  Once the imaging was performed by the independent consultant, it was determined that three previously undisclosed flash drives had been connected to defendant’s personal computers during the relevant time frame.  Id.  The plaintiff demanded immediate access to those flash drives, as they may contain relevant evidence.

The court agreed, even though the initial connection of the flash drives to the personal computers happened months after the employee was terminated from Network The court insisted that plaintiff pay the full cost of imaging the additional devices, though, stating “[t]he likelihood that Pappas was using these flash drives to transfer Network’s confidential information would seem to become more remote with the passage of time.” Id. at *3.

Defendant Pappas was forced to turn over flash drives and personal computers.  While the target of the investigation is possible stolen proprietary material, through forensic imaging the independent consultant had access to each and every file on the device.  Perhaps Pappas can take solace in the fact that her iPhone wasn’t subject to discovery, as the device likely contains more sensitive data than just high scores to Candy Crush.

Kevin received a B.S. in Political Science from the University of Scranton (2009), and will receive his J.D. from Seton Hall University School of Law in 2015.  Prior to joining the Seton Hall community, Kevin worked as an eDiscovery professional at two large “white-shoe” law firms in Manhattan.

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