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n trade secret litigation, we often seek to uncover whether a former employee has taken confidential trade secret information and stored it on a personal device, such as a smartphone. We sometimes do so by seeking to obtain a forensic image of the device, and then we craft protocols to help discern personal information unrelated to the lawsuit from the relevant company information. Other times we craft broad discovery requests that cover any potentially relevant information on a personal device. Sometimes we seek to recover the smartphone itself, despite the fact there might be personal information contained on the device. As a result of these different approaches, discovery disputes continue to arise about the proper scope of such discovery.
For example, a New York trial court ordered a former employee to surrender his iPhone to the business firm’s attorneys in a trade secret dispute despite the former employee’s objection. In the discovery dispute, the trial court held the surrender allowed the firm the opportunity to collect its client information from the iPhone.
The former employee appealed and the Supreme Court disagreed with the trial court. The appellate court held that surrendering the phone itself exceeded the scope of permissible discovery; that discovery should be limited to the information “from” the smartphone, and not the iPhone itself. The appellate court found the initial temporary restraining order against the employee sufficiently dealt with the protection of the business’ confidential client information. Although not addressing it directly, the appellate court’s ruling seems to indicate that a demand for the employee’s call log would also be appropriate. The rationale behind the ruling centered on a finding that the technology and applications of today’s smartphones more resemble a personal computer, rather than a single-purpose telephone. The built-in computing application and internet access transforms the smartphone into a computer. The employee’s iPhone, therefore, may contain privileged and confidential information as would a personal computer. To guard against disclosure of personal confidential information, and to determine the discoverability of its contents, the Court then ordered an in-camera review of the employee’s iPhone.
Following the in-camera review, the district court ordered the former employee to surrender his iPhone to the forensic vendor hired by the firm. The forensic vendor was instructed to obtain an image of the iPhone’s contents, including, active and deleted call records, contact information, contacts lists, test messages, and emails. A forensic protocol, much like the one we regularly use, was then implemented which included running search terms against the image to produce lists of discoverable data. (This raises the question about whether running search terms is the best way to insure that all relevant data is uncovered, but that is a discussion for another day.)
The practical takeaway from the Court’s Order is to keep discovery requests geared to the information contained on a mobile device, not the smartphone itself – unless you have good cause to demand surrender of the phone (such as a policy that requires it). Without good cause, agreeing to appropriate forensic protocols or requesting an in-camera review will ensure that only non-privileged and relevant information is disclosed, and should negate the argument that discovery of information from the mobile device is inappropriate.
What, if any, examples of this type of discovery requests have you experienced? Have you experienced any discoverability disputes surrounding confidential information from a former employee’s personal smartphone? Drop us a line and let us know how the court handled this type of discovery dispute.
