When Can You Inspect an Opposing Party’s Computers and Digital Data in Litigation?

In addition to requesting documents and interrogatory responses, parties in litigation can file requests to inspect the other side’s computers or other electronic devices for evidence to support their claims.  However, due to the intrusive nature of such requests, courts won’t just rubber stamp any request to inspect.  Instead, there are certain requirements that a party seeking a request to inspect—sometimes also referred to as a forensic examination—should meet to avoid risking having the request denied if it ends up before a court.

ZVMLaw recently won a motion in the U.S. District Court for the Northern District of Illinois for a client that was opposing a motion to inspect its Google Analytics account and other data.  The plaintiff in the case, who sued our client for cybersquatting and trademark infringement, sought to conduct an inspection of our client’s “digital data and analytical tools,” including websites and social media accounts.  The plaintiff argued that the inspection would retrieve highly relevant evidence pertaining to claims and damages in the case.   While the court “recognize[d] the significance of the evidence Plaintiff hopes to retrieve,” it nevertheless denied the motion to inspect for a few reasons. 

First, it found that the information that the plaintiff sought to inspect was overbroad because it included a substantial volume of information that did not go to the heart of the case. 

Second, it found that the request was overly invasive because the plaintiff had failed to exhaust other methods of collecting the information, such as first requesting the information via a document request or interrogatory.  Even though the plaintiff claimed that other discovery methods would have been insufficient to capture the data, the court found these claims unsubstantiated, noting that “Plaintiff must pursue the least intrusive means of obtaining the relevant data before requesting a forensic exam.”

Third, it found that the plaintiff was not in the type of situation where a forensic examination was warranted.  Such an inspection would be warranted, the court found, if the party undergoing the inspection had intentionally concealed relevant data or lacked the expertise to search and retrieve the data.  While the plaintiff asserted that our client lacked expertise, the court found the assertion conclusory because it lacked “any details on the alleged flaw in Defendants’ search protocol.”   

In sum, the court reiterated that “the discovery rules are not a ticket to an unlimited, never-ending exploration of every conceivable matter that captures an attorney’s interest.”  Attorneys seeking to inspect electronic devices as part of discovery should thus take heed of the limitations of such requests.  To the extent you wish to conduct an inspection, make sure the request is sufficiently narrow, that you’ve first exhausted other avenues of discovery, and that you can point to a clear reason why the other side couldn’t retrieve the data itself.  

The citation to the full opinion is Tireboots by Universal Canvas, Inc. v. Tiresocks, Inc., No. 20-cv-7404, 2022 U.S. Dist. LEXIS 113926, 2022 WL 2316228 (N.D.IL June 28, 2022)