Florida Rules of Civil Procedure: Can my computer be searched?
I was recently asked by two clients to help them regarding privacy issues. In both cases the opposing party wanted to take custody of their computers and copy their entire hard drives.
The issue: whether they had been using their computers to sell data illegally on the Internet.
After a couple of days, the opposition would give the computers back, with the promise that they would "try" to avoid peering into purely personal stuff. And if they found any, they would not copy it. What is that saying about "letting the cat out of the bag?"
Their computers had been used for both personal and business reasons over the years. Their hard drives also had private information obtained from their customers, like credit card numbers, and personal information about their friends too. As computers become more and more central to our lives, it is to be expected that lawyers will often ask for data stored on computers.
Computers are like giant filing cabinets except the information is electronically stored instead of on paper. Florida law recognizes a constitutional right of privacy in these situations. A Motion for Protective Order should be filed to assert the right of privacy. The Judge should not allow the entire hard drive to be copied and should pare down the Discovery to protect the privacy interests of the objecting party.
Read more on the procedure in Florida, after the jump...
The procedure in Florida to obtain discovery of data on a computer is based on two Florida Rules of Civil Procedure:
- Rule 1.350 (a)(3) - production of documents and things and entry upon land for inspection and other purposes
- Rule 1.280 - general provisions governing discovery
In the first appellate Florida case on discovery of data on computer drives, Strasser v Yalamanchi, a question arose about whether data that had been purged could be recovered, and whether there was evidence of any intent to thwart discovery by ditching the data. The defendant argued that a search would be useless since the data was gone. A rebuttal expert argued it was theoretically still there. The Court held that irreparable harm occurs when confidential information is disclosed because once disclosed, it cannot be taken back. Under the second Florida case considering this issue, it was held that a party whose computer's hard drive is to be search should have the right to file a privilege log with the court to protect himself from disclosure of confidential information, pursuant to RCP 1.280(5). Menke v Broward County School Board,
In the last couple of years free software programs have been developed to allow computers to be searched using keywords and phrases. Recent Apple products come with a built-in program called Spotlight, and Google has a free desktop search program called Google Desktop.
There are two versions which can be downloaded for free depending on whether the computer is Mac or Windows -- Windows has its own version of a desktop search program. A good and reasonable way to begin a search might be to require a Key Word search using one of the software programs described.
