A recent opinion issued by Florida’s First District Court of Appeal explains that “privacy rights do not completely foreclose the prospect of data stored on electronic devices,” and that “limited and strictly controlled inspections of information stored on electronic devices” may be permitted by a trial court. Antico v. Sindt Trucking, Inc., — So.3d —-, 2014 WL 5099433 (Fla. 1st DCA, Oct. 13, 2014).
Following its interpretation of Florida Rule of Civil Procedure 1.280, which allows for the discovery of matters that are relevant and admissible, or reasonably calculated to lead to admissible evidence, including electronically stored information, the First DCA explained that when otherwise private personal information is relevant, it is within the trial court’s discretion to permit discovery into those materials. Requests to discover private personal information “must be balanced against the individual’s competing privacy interests to prevent an undue invasion of privacy.”
In Antico, the First DCA found:
It would appear that the only way to discover whether the decedent used her cellphone’s integrated software at the time of the accident, or drafted a text, dialed a number, searched for contact information, reviewed an old message, or used any other of the smartphone’s many features, is by broadly inspecting data associated with all of the cellphone’s applications.
The holding does not, however, open the door to “unanchored fishing expedition[s]” which are unsupported by specific evidence that relevant information exists on a specific device. And, if the party seeking to protect private personal information can offer an alternate, less intrusive approach that provides the relevant information without revealing private personal information, then a court may limit the discovery accordingly. But, if there is no viable alternative and the parties cannot agree on a procedure to protect and segregate private personal information, the requesting party may be permitted to discovery when specific procedures are in place. The court in Antico described the specific procedures implemented by the trial court and agreed that the use of an expert to preserve data, copy data, and make a copy available to the producing party before the requesting party had the opportunity to review the data, adequately protected the producing party’s privacy rights.
When defending a party from whom private personal information is sought, counsel should demand an opportunity to review the specific information forensically collected before it is produced to the requesting party, file all necessary objections, move for a protective order to protect non-relevant private personal information and withhold privileged communications when they exist.