by Lacey Napper
A Kentucky court handling an evidence dispute in a computer data case recently required an employee’s spouse to produce her iPhone for a forensic examination. 
Facts
Brown Jordan and related entities (the “companies”) filed a lawsuit against former employee Christopher Carmicle alleging that he improperly accessed its computers and computer systems, among other claims. Carmicle filed a lawsuit against the companies in return, and the court consolidated the cases.
As the parties began to request and exchange evidence during the discovery process, they agreed to a protocol for computer forensic investigation. As required by the protocol, Carmicle submitted his electronic and data storage devices for forensic examination. After examining Carmicle’s devices, the companies believed that an Apple iPhone owned by his spouse might contain e-mail messages that could be relevant to the case.
The companies served a subpoena on Carmicle’s wife in an attempt to require her to produce her iPhone. She objected and refused. The companies eventually filed a motion asking the court to require an examination of the iPhone.
Court’s ruling
The court noted that the Federal Rules of Procedure allow for discovery of relevant material that “may bear upon, or reasonably could lead to other matters that could bear upon, any issue that is or likely may be raised in the case.” Because the underlying lawsuit involved claims related to the improper access of computers and computer systems and because Carmicle testified at his deposition that he might have used his wife’s iPhone, the court decided that the phone should be examined.
Carmicle’s wife attempted to argue that the information the companies sought didn’t actually exist on her iPhone. The court criticized that argument because it was “impossible for the [companies] to refute it without a forensic examination of her iPhone.”
And although Carmicle’s wife purchased the phone after the allegedly improper computer access occurred, the court recognized that fact alone—even if it was true—wouldn’t be determinative of whether there was any relevant information on the iPhone. As the court pointed out, “When a new iPhone is purchased, it is very common for the old unit to be backed up, and then the backup is used to transfer the information from the old unit to the new iPhone.”
Carmicle’s wife also claimed that producing her iPhone for forensic examination would be inconvenient. The court summarily dismissed that argument because a “forensic examination can occur in as little as four hours and can be completed overnight.” Brown Jordan International, Inc., et al. v. Carmicle, No. 3:15-MC-00027-GNS (W.D. Ky., Oct. 19, 2015).
Bottom line
Courts are becoming savvy about technology, and judges are consistently expanding the nature and amount of electronic data and devices that may be subject to disclosure during lawsuits. That generally creates a larger burden for employers than for employees because employers usually have more data to sort through.
When evaluating your employment policies and practices, keep in mind that electronic devices used by an employee may have to be produced during a lawsuit, even if the employee doesn’t have sole access to the device and even if he objects to turning it over. Personal privacy protection for electronic data continues to be rejected by courts as a reason to forgo evidence—or potential evidence. The adage recited by lawyers is true: If you wouldn’t like seeing it on the front page of your newspaper, don’t send it in an e-mail.
Lacey Napper is an attorney with Frost Brown Todd LLC in Louisville, Kentucky. For more information on this topic, please contact her at lnapper@fbtlaw.com.
Need to learn more? Employee use of electronic devices for work-related purposes, or for non-work purposes that nonetheless impact the workplace, may create record capture and retention problems that did not exist until recently. In the social media, share-everything age, it’s all too easy to accidentally share confidential, or even highly personal, information about the company or employees that should not have been shared. That’s even more challenging with new bring-your-own-device (BYOD) policies. Listen to BLR’s on-demand webinar “Electronic Records and HR: What to Keep, What to Delete, and How to Tell the Difference” to learn the kinds of electronic records HR professionals deal with, what you should and shouldn’t be keeping, your legal obligations, and how to be prepared if federal or state agencies come knocking. For more information, click here.