Case Alert: Brooks v. Frattaroli
Requests for electronically stored information ("ESI") often raise privacy concerns for counsel and clients. Courts are increasingly being called on to balance those privacy concerns against the interests of parties seeking information with which to litigate their disputes. Minimal case law exists in Pennsylvania addressing issues related to electronic discovery, and up until recently none existed on the issue of how to balance the need for discovery with those privacy concerns. The recent case of Brooks v. Frattaroli, PICS Case No. 09-1709 (C.P. Lebanon Oct. 5, 2009) attempts to set out a standard for balancing the truth gathering potential of ESI with a litigant's reasonable right to privacy. The opinion by Common Pleas Judge Bradford H. Charles, while not earth shattering in its holding – the plaintiff was denied its request for unfettered access to defendant's computer systems – gives insight into what factors Pennsylvania courts will consider in resolving discovery disputes over ESI.
Background
The case involved a dispute over the authenticity of a classic car (a 1970 Chevrolet Chevelle) purchased by plaintiff for $37,500 through a website operated by defendant. The defendant's website represented the Chevelle as an authentic, original vehicle based on its Vehicle Identification Number ("VIN"). Plaintiff later claimed that he had been duped and that the VIN number of the vehicle had been forged. He subsequently brought suit alleging breach of contract, fraud and a violation of Pennsylvania's Consumer Protection Law.
The discovery dispute centered around a request by plaintiff that its expert be permitted to examine all of the defendant's computers including "(1) all metadata, (2) all internet queries/transmissions/website/auction sites, (3) all deleted files, [and] (4) all stored files." The plaintiff was seeking electronic evidence to support the idea that the VIN number had been doctored. Defendant moved for a protective order, complaining that the request was a "fishing expedition." Plaintiff's counsel argued that the request for ESI was necessary to support the allegation that the defendant intended to commit fraud.
The Law On Direct Access To ESI
Judge Charles first noted that Pennsylvania has no rule of court or procedure governing the production of ESI generally or addressing direct access in particular. After noting that Pa.R.C.P. 4009.31 allows for the entry upon property and physical inspection of an object or operation, the court observed that no Pennsylvania appellate court has addressed this rule in the context of computer files. The court recognized that Rule 34 of the Federal Rules does explicitly permit for direct inspection of ESI, although the comments to that rule caution against "undue intrusiveness" and note only that direct access might be justified in some circumstances.
In the absence of any controlling Pennsylvania appellate authority, the court said that it would look to analogous federal authority. The Brooks decision came only days after the Texas Supreme Court's decision in In re Weekley Homes, L.P., 2009 WL 2666774 (Tex. Aug. 28, 2009), but did not cite that decision. In Weekley Homes, the trial court granted the plaintiff direct access to a defendant's computers upon an allegation of a scarcity of relevant emails produced. On a petition for a writ of mandamus, the Texas Supreme Court found that the trial court abused its discretion by ordering forensic access to the computer hard drives of four of defendant Weekley's employees. It is unclear whether Judge Charles was aware of theWeekley Homes decision. The Brooks court did cite two recent decisions where federal courts likewise denied requests to directly inspect an opponent's computers. See Young v. Pleasant Valley Sch. Dist., 2008 WL 2857912 (M.D. Pa. 2008); Bianco v. GMAC Mortgage Corp., 2008 WL 4661241 (E.D. Pa. 2008). In each case, the court denied the request for a direct inspection. In Young, the plaintiff sought direct access to its opponent's backup tapes. The court denied the request, citing both privacy concerns for students and their parents, as well as the enormous cost to the district in having to supervise such access. Young, 2008 WL 2857912, at *2. In Bianco, the plaintiff sought production of one of defendant's laptops for direct inspection. The court concluded that it would not permit a right of direct access on mere suspicion or allegation. Bianco, 2008 WL 4661241, at *2-3.
These decisions reaffirm the notion that the system of civil discovery in the United States is largely self-policing, and that courts will generally allow responding parties to control their own data. However, as the comments to Rule 34 recognize, even with a strong bias against permitting a requesting party to review source data without going through the producing party's counsel, there are circumstances where such direct access might be justified. Judge Charles' opinion attempts to place some parameters on those circumstances.
The Holding
After acknowledging case law which ruled against requests for direct access, Judge Charles engaged in a discussion of the emerging and increasing importance of "metadata" in civil discovery, especially in the area of authentication of electronic records. In the case at hand, metadata (which includes among other things information about when electronic files were last accessed or altered) may have revealed whether the vehicle's records had been doctored along the way. Judge Charles concluded that:
Without question, discovery of ESI can provide unprecedented opportunities for determining truth and preventing fraud. On the other hand, unrestricted access to an opposing party's ESI creates tremendous potential for discovery abuse and invasion of privacy. Somehow, the legal system must develop a balanced approach that uses the truth gathering potential of ESI without abusing a litigant's legitimate expectation of privacy.
Brooks, PICS Case No. 09-1709, at 7. Judge Charles set forth five factors that represented his attempt to articulate the appropriate balance between discovery and privacy. The court stated that these factors would govern its analysis on the motion before it and would also govern its analysis on any subsequent requests for ESI.
Those five factors are: the scope of the request, confidentiality/privacy, the history of discovery in the litigation, costs, and the type of case involved. Id. at 7-9.
The majority of these factors cut against plaintiff's request in this instance. Regarding the scope of request factor, the court noted the extraordinary breadth of the plaintiff's request. Indeed, the court referred to the request as "unfocused and overly broad." On the question of privacy, Judge Charles noted the legitimate interests that the defendant had in maintaining privacy in its business documents unrelated to the case, as well as to personal communications. Regarding discovery history, the court took note of the less than fulsome answers that defendant had provided to plaintiff's discovery requests. For instance, defendant responded "unknown" when asked by plaintiff who sold it the car; it further stated that it had no responsive documents in its possession. The court viewed this "non-response"as cutting in favor of plaintiff's request for access. On the issue of cost, although no record was before the court, it reasoned that defendant would have to hire an expert to monitor the process were access granted. A factor that seemed to cut in plaintiff's favor was the "type of case" factor. Regarding this factor, Judge Charles reasoned that in a fraud case, the need for ESI such as metadata was especially critical, more so than on a claim for negligence. Id. at 9.
Nonetheless, Judge Charles observed that merely filing a fraud complaint is not enough to trigger a right to invasive discovery such as direct access. The court stated that "at a minimum, a party seeking ESI discovery should be required to submit an affidavit setting forth facts and/or documentation to establish the need and legitimacy of ESI discovery." Id. at 10. Ultimately the court concluded that the plaintiff had not met its burden on the discovery motion, but invited the plaintiff "to submit a more focused ESI discovery request that is founded upon more clearly identified justification." Id. The court issued the protective order in favor of the defendant, but without prejudice for the plaintiff to formulate a more targeted request.
Implications Of Brooks v. Frattaroli
It is perhaps unremarkable that the court did not agree to allow the plaintiff and its expert unfettered access to defendant's computers on the facts before it. Direct inspection is clearly the exception, and not the rule. The plaintiff's request was certainly onerous and rife with the potential for invasions of defendant's privacy. Moreover, there was nothing in the record to suggest that the defendant had engaged in any discovery misconduct that would justify the plaintiff's request.
Given that it is the first decision of its kind, Brooks v. Frattaroli is likely to be cited or at least considered by other Pennsylvania courts facing similar requests for direct access to an adversary's ESI. Litigants would be well advised, therefore, to pay heed to the factors articulated by the court. In particular, the defendant's non-cooperation in discovery could have resulted in the court permitting plaintiff to pursue a request for invasive ESI discovery. Litigants should bear in mind that the nature of their own responses could become an issue. In addition, Judge Charles spoke of the affidavit as being the floor of what the requesting party must provide in terms of support for its request. It is not clear what type of showing by affidavit would have sufficed in the court's mind. It appears that at the least an affidavit would have to establish that there was some reason to believe that the producing party could not be trusted to comply with ESI requests on its own good faith. This would presumably be a heavy burden.
The opinion leaves a number of other questions unanswered. For example, the court's discussion of the affidavit requirement speaks of parties "seeking ESI discovery" and was not limited to requests for direct access to opponent's systems. The court appeared to leave open the argument that the affidavit requirement applies generally to all ESI requests. Likewise, it remains an open question as to what sort of "focused" request would pass muster under the standard articulated by the court. Even a narrow request to directly inspect ESI would raise serious privacy concerns.
Brooks v. Frattaroli is the first in what will certainly be many Pennsylvania decisions in the evolving area of electronic discovery. Time will tell whether the standard articulated by Judge Charles will be enduring.
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