Court Declines to Compel Response to “Ultra-Broad” Request for Passwords and User Names or Allow “Exhaustive Forensic Examination” of Computers

NOLA Spice Designs, LLC v. Haydel Enters., Inc., No. 12-2515, 2013 WL 3974535 (E.D. La. Aug. 2, 2013)

In this trademark infringement case, Defendant sought to compel Plaintiff and its principal (a third-party defendant) to produce “passwords and user names to all online web sites related to the issues in this litigation” and to compel Plaintiff and its principal to “submit their computers to an exhaustive forensic examination.”  Because the request for passwords and user names was “ultra-broad” and would allow Defendant to “roam freely through all manner of personal and financial data” and because Defendant “failed sufficiently to justify the broad forensic computer examination it request[ed],” the court denied the motion.

Defendant moved to compel Plaintiff and its principal to produce “‘passwords and user names to all online websites related to the issues in this litigation, including social media, weblogs, financial information and records,’” and to “submit their computers to an exhaustive forensic examination . . . with ‘access to full electronic content of Nola … and Duarte online pages and bank accounts, including without limitation, online postings, weblogs, and financial accounts, for a time period from October 13, 2009 to the present, including deleted and archived content.”  (Duarte is Nola’s principal.)  Plaintiff and its principal refused to comply with Defendant’s request for passwords and user names based on “privacy and confidentiality objections.”

Taking up first the request for passwords and user names, the court acknowledged that “there is no protectable privacy or confidentiality interest in material posted or published on social media,” but noted that Defendant’s arguments to that end “miss[ed] the point.”  Instead, the court focused on the “ultra-broad” nature of the request that “would permit Haydel to roam freely through all manner of personal and financial data in cyberspace pertaining to Nola and Duarte.”  Reasoning that neither Defendant’s promises to “limit itself” to information “related to the issues in this litigation,” nor the protective order already in place “would be effective in controlling the potential for mischief,” and also noting the lack of legal authority presented (or known to the court) to support “such broad-ranging and logistically uncontrollable discovery of ESI,” the court declined to compel the production of the requested information.

As to Defendant’s request for “exhaustive forensic examination” of Plaintiff’s and its principal’s computers, the court indicated that such discovery was “within the scope of ESI discovery contemplated by Fed. R. Civ. P. 34(a)(1)(A),” but further noted that “such requests are also subject to the proportionality limitations applicable to all discovery under Rule 26(b)(2)(C).”  The court went on to reason that while forensic examinations were “not uncommon,” “[c]ourts have been cautious in requiring the mirror imaging of computers where the request is extremely broad in nature and the connection between the computers and the claims in the lawsuit are unduly vague or unsubstantiated in nature.”  The court further indicated that neither “mere skepticism that an opposing party has not produced all relevant information” nor “mere desire to check that the opposition has been forthright in its discovery responses” were sufficient to warrant drastic discovery measures.  Rather, courts have allowed “restrained and orderly” inspections where the movant has “demonstrated that its opponent has defaulted in its discovery obligations by unwillingness or failure to produce relevant information by more conventional means.”

In the present case, despite “some connection between the computers … and the claims in this lawsuit,” the court applied “the foregoing standards and principles of proportionality” and found that Plaintiff had not willfully defaulted on its discovery obligations and that Defendant’s own arguments expressed the kind of “mere skepticism”  and “mere desire to check that the opposition has been forthright in its discovery responses” that were insufficient to compel an intrusive forensic examination.  Thus, Defendant’s request for forensic examinations was also denied.