Monday, January 18, 2010

"Appellate Court Affirms Order Allowing Plaintiff's Expert to Image Defendants' Hard Drives to Support Claims of Spoliation and Fraud"

The K&L Gates Electronic Discovery Law Blog has an interesting post about imaging hard drives in electronic discovery.  The post is titled "Appellate Court Affirms Order Allowing Plaintiff's Expert to Image Defendants' Hard Drives to Support Claims of Spoliation and Fraud" and is copied below, with all credit to K&L Gates, and can be viewed at THIS link.
Cornwell v. N. Ohio Surgical Ctr., 2009 WL 5174172 (Ohio. Ct. App. Dec. 31, 2009)
In this wrongful death litigation, the trial court granted plaintiff’s motion to allow his forensic expert to create a mirror image of defendants’ hard drives. Plaintiff asserted that examination of the drives would reveal evidence of defendants’ willful alteration or deletion of relevant evidence. The court granted the motion despite defendants’ objections that such access would violate statutory and common law prohibitions against the disclosure of confidential medical information and that such access was not authorized under Fed. R. Civ. P. 34. Defendants appealed. On appeal, the order of the trial court was affirmed.

Plaintiff’s wife, Mary Cornwell, suffered cardiac arrest during arthroscopic knee surgery and died six days later. In plaintiff’s suit for wrongful death, a question arose as to the surgeon’s knowledge of Mrs. Cornwell’s history of hypertension and the medication(s) she was taking. The surgeon claimed no such knowledge. However, several pieces of documentary evidence (including two “office notes” and a letter) called the veracity of that claim into question. Following the depositions of the surgeon’s resident and an employee of the clinic, plaintiff came to believe that defendants had purposefully altered the content of certain electronically created evidence related to the surgeon’s knowledge of Mrs. Cornwell’s medical history. Based upon the deposition testimony and evidence that “despite [plaintiff’s] request” defendants “permitted an information technologist access to the desktop computer upon which the office note was transcribed” and that the computer was thereafter “rendered nonfunctional,” plaintiff amended his complaint to include claims of spoliation and fraud.

Plaintiff then sought to create a mirror image of the hard drives upon which the relevant documentary evidence was created. Defendants objected claiming that “their hard drives contained privileged health information of ‘hundreds of other patients’” and argued, essentially, that such access would violate both statutory and common law prohibitions against the dissemination of confidential patient information. The motion was granted and the court issued a detailed order defining the protocol to be followed when creating and analyzing the mirror image of the drives.

Defendants appealed the order. On appeal, defendants argued that allowing the expert’s access to their computer systems would violate statutory prohibitions against the disclosure of privileged health information and that the search terms would “undoubtedly ‘pull up’ privileged information” thereby subjecting defendants to tort liability for the disclosure of patient information. Like the trial court, the appellate court rejected these arguments. Supporting its conclusion, the appellate court cited the testimony of plaintiff’s expert that he would not open or otherwise view confidential patient information in the course of his forensic process.

The appellate court then turned to defendants’ arguments that plaintiff’s direct access to their computer system was not authorized by Fed. R. Civ. P. 34 and that “they, not [plaintiff] are the only parties who can supply [plaintiff] with the data from [the relevant drives].” Citing the advisory committee notes, defendants argued that “it is only when data cannot be made useable by the responding party that the discovering party ‘may be required’ to use his own devices to translate the requested data into usable form.” Defendants bolstered their argument by citing to In re Ford Motor Co., 345 F.3d 1315 (11th Cir. 2003), a case in which the plaintiff’s request for direct access to Ford’s databases in order to search for additional claims analogous to her own was denied on appeal in the absence of “some condition such as improper conduct on the part of the responding party” and because “the district court failed to state any abuse of the discovery process by Ford, failed to set forth any protocols for [plaintiff’s] search of Ford’s databases, and did not even designate any restricting search terms.”

The appellate court found Ford distinguishable where the plaintiff in the present case learned of the potential evidentiary issues “during discovery [sic] process itself” and where “unlike the circumstance in Ford, it was impossible for [defendants] to produce those documents.” Further, the court noted, “the circumstances under which the letter and the office note disappeared and the computer virus/inoperability was allegedly discovered raises an inference of improper conduct.”

In dismissing defendants’ argument regarding proper access pursuant to rule 34, the court also noted the “direct relationship between the [plaintiff’s] claims of spoliation and fraud” and explained “it is clear that [plaintiff] can only recover on either or both [claims] if he is allowed to determine whether appellants’ [hard drives] were willfully altered (spoliation) and/or [defendants] falsely represented that they had no knowledge of Mrs. Cornwell’s pulmonary hypertension at the time of her arthroscopy (fraud).” The court also reasoned that unlike in Ford, the trial court in this case “set forth a specific protocol, definite search terms, and the means necessary to protect privileged information.”

The trial court’s judgment was affirmed.

A copy of the full opinion is available here.


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