Florida appellate court issues ruling on electronic discovery

Administrative law judge’s discovery order permitting “access to literally everything” on petitioner’s computer did not adequately protect against disclosure of confidential and privileged information.

After being suspended from his job as a school teacher, petitioner Menke was placed under investigation for alleged misconduct. In a formal proceeding against Menke before Florida’s Division of Administrative Hearings, the school board sought discovery of all of the computers in Menke’s household. The board requested that its retained computer expert be allowed to inspect Menke’s computers in a laboratory, so that it could search for improper instant messages.

Menke objected to the discovery request on the grounds that such a wholesale inspection of his computers would violate his Fifth Amendment right and his right of privacy, and would reveal privileged communications with his wife, attorneys, accountants, clergy, or doctors.

Over Menke’s objections, the administrative law judge granted the motion to compel production of the computers for inspection. Menke sought review with the Florida appellate court, which quashed the discovery order.

The appellate court looked to the only other Florida appellate court decision relating to electronic discovery, Strasser v. Yalamanchi, 669 So.2d 1142 (Fla.App.1996), noting that the relevant rules of procedure were broad enough to encompass requests to examine computer hard drives, but only in limited and strictly controlled circumstances. The court concluded that permitting unlimited access to everything on a computer would constitute irreparable harm, because it would expose confidential and privileged information to the opposing party.

The court continued by noting that in cases where there is a need for access to electronically stored information, searching for such data should first be done by the party responding to the discovery request, unless there is evidence of data destruction designed to prevent the discovery of relevant evidence.

In this case, there was no evidence of any destruction of evidence or thwarting of discovery. The court sent the matter back to the administrative body, allowing the school board to request that Menke produce relevant, non-privileged, information. In the court’s words, Menke was not required to provide unfettered access to the entire “electronic filing cabinet” that was his computers.

Menke v. Broward County School Bd., — So.2d —-, 2005 WL 2373923 (Fla.App., Sep 28, 2005).