In a recent case (Ferron v. Search Cactus, L.L.C., 2008 WL 1902499), the the District Court for the Southern District of Ohio ruled that information stored on a computer that contained content protected by the attorney-client privilege presented insufficient reason for a party to prevent the computer from being mirrored for electronic discovery purposes.
The plaintiff in the case case was an attorney who utilized his home and office computers for storing and working with information related to the representation of clients and the maintenance of lawsuits, but who also used his home computer to store his personal banking and credit card information. He objected to the defendants' discovery request so that the defendants could analyze the electronic evidence in question.
The court rejected plaintiff's arguments that by fulfilling defendants' request, irrelevant personal information would be revealed. The court further rejected the plaintiff's argument that there would be a waiver of the attorney-client privilege if a third party, namely the forensic expert, were allowed the see information on the computer.
Instead, the court found that the plaintiff attorney's failure to fulfill his “duty to preserve information because of pending or reasonably anticipated litigation", a duty that was "independent of whether defendants requested a litigation hold," justified the defendants' discovery request.
The court ordered the defendants' expert to review his findings in confidence with plaintiff prior to making any findings available to defendants. At that time, the plaintiff could identify for deletion any information that was irrelevant and could also create a specific privilege log of any relevant information for which he claimed privilege. After this review was completed, the expert was ordered to remove the information claimed as privileged and to provide all other information to the defendants.
Given the court's decision, it appears that confidential information residing on a computer will not preclude wholesale disk drive duplications for discovery purposes. However, there are best practices to safeguard data and to ensure that you are not commingling personal and client data:
- Use two computers-- one for personal and the other for client matters. If one computer is more convenient, install additional hard drives (internal or external) to be used with the same computer. External hard drives have the added benefit of portability, but they also pose a higher risk of accidental loss or theft. So encrypt your data if possible.
- Use separate email accounts for personal and client matters. That way no one else (not even the forensic expert) has to read about your beach party in conjunction with your client's information, unless, of course, the other party has met the burden of proving your sandy outing is relevant to the discovery in question.
- Create a matter-centric workspace by using separate folders for individual client matters. Information pertaining to a client matter can then be managed more easily due to improved document retrieval.