Last Friday, a district court in Louisiana issued an order in trademark infringement case of Nola Spice Designs, LLC v. Haydel Enterprises, Inc. Prior to this order, Haydel had filed a motion to compel which, as the order explains, was pretty substantial:
The exclusive relief sought in this motion is an order compelling Nola and [its principal Raquel] Duarte to (a) produce their “passwords and user names to all online web sites related to the issues in this litigation, including social media, weblogs, financial information and records,” and (b) submit their computers to an exhaustive forensic examination, including providing “an independent forensic expert” with “access to full electronic content of Nola . . . and Duarte online pages and bank accounts, including without limitation, online posting, weblogs, and financial accounts, for a time period from October 13, 2009 to the present, including deleted and archived content.”
While the court agrees with Haydel’s assertion that “there is no protectable privacy or confidentiality interest in material posted or published on social media”, that is besides the point in this case:
Haydel’s ultra-broad request for computer passwords and user names poses privacy and confidentiality concerns that go far beyond published social media matters and would permit Haydel to roam freely through all manner of personal and financial data in cyberspace pertaining to Nola and Duarte. Neither Haydel’s vague representation that it would limit itself to accessing cyberspace information “related to the issues in this litigation” or the protective order already in place would be effective in controlling the potential for mischief in compelling Nola and Duarte to give Haydel their computer passwords and user names.
Bonus points for the phrase “the potential for mischief”. So, part (a) of Haydel’s motion to compel is denied for broadness. How about part (b), about the forensic examinations? Here, again, while the court agrees with the motion in principle – “Haydel’s request for an exhaustive forensic examination of Nola’s and Duarte’s computers is within the scope of ESI discovery contemplated by Fed. R. Civ. P. 34(a)(1)(A)” – it’s the specific language used in the motion that is troublesome. Specifically, the court cites the civil procedure rule focused on proportionality, whose limits include”
…the prohibition of discovery that is unreasonably cumulative or duplicative or that could be obtained from some more convenient, less burdensome or less expensive source, or the benefit of which is outweighed by its burden or expense, when considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake and the importance of the proposed discovery to those issues.
The court finds that while “[c]ertainly, there is some connection between the computers sought to be examined and the claims in this lawsuit”, the “exhaustive computer forensic examination Haydel seeks” still fails the proportionality test. For one thing, there is no evidence that Nola has “willfully defaulted on its discovery obligations in a way that would justify the requested examination.” Indeed, Nola had said in interrogatories, depositions and memoranda, “that it has produced all responsive materials in its possession, custody or control.” With no evidence to refute that, the motion appears overbroad. Additionally:
Haydel’s own arguments in its own briefing in connection with this motion express the kind of “mere skepticism” and “mere desire to check that the opposition has been forthright in its discovery responses” that the decisions cited above have found insufficient to compel an intrusive computer forensic examination.
A hunch is not enough. What’s more, Haydel’s basis for this motion was that it “has not received information or materials it suspects should exist and which it insists Nola and Duarte must have if they are to prove their case, but which Nola and Duarte say — under oath — they do not possess.” (Emphasis added). A hunch, coupled with – at best – speculation, are certainly not enough. Not surprisingly, Haydel’s motion is denied.