Protective Orders

by Perry L. Segal

Shaped like a stack of LPs, the cylindrical Capitol Records building has long stood out on the Hollywood skyline. Now, a copyright infringement case filed by the music company is making its mark on the e-discovery landscape by providing guidance on the balance of a plaintiff's need to know and a defendant's right to privacy.

In the case brought by Capitol Records (Capitol Records Inc. v. Noor Alaujan, 2009 WL 1292977 (D. Mass. 2009)), Joel Tenenbaum was one of several defendants accused of illegally sharing files of copyrighted music online. In the course of the case, the record company sought access to two of his computers to assess the extent of the copyright infringement. Tenenbaum's attorney filed for a protective order, arguing that the discovery demand was overbroad, privileged, and an invasion of his privacy. The court granted the order for one computer but allowed access to the other. To address Tenenbaum's privacy concerns, the plaintiff's expert was ordered to provide a detailed report of its findings, after which Tenenbaum had five days to object to release of the contents before they were made public.

In this case, the court bent over backward to accommodate the defendant. But your clients may not be so fortunate. To be sure, given the integral role that computers play in people's lives and businesses today, any case that involves accessing someone's personal electronic information is likely to get sticky. Counsel, after all, is not going to hand over rights to a personal electronic device without a fight.

Because many discovery disputes are resolved at meet-and-confer sessions or through the court's intervention early in the process, there are few California-specific cases to act as a guide. Therefore, the California Electronic Discovery Act, which took effect last year, will be your best resource. Section 2031.030 outlines the form of the demand that must be served to gain access to a computer. It also lets the demanding party "specify a reasonable place for making the inspection, copying, testing or sampling, and performing any related activity."

That "reasonable place" may very well be the producing party's location. Though this may send shivers up your client's spine, there is a certain logic to it: Most computers are never far removed from a server room or cubicle. And providing a forensics expert with access to a specific electronic device does not mean giving him or her the run of the premises, unsupervised.

But is it reasonable to give an inspector on-site access? Section 2031.060, which concerns protective orders, provides guidance. It gives the judge broad discretion to protect parties based on a lengthy list of criteria, including: whether the items sought are relevant to the action; whether enough time has been given to comply; whether the place of production should be different from the place specified in the demand; and whether the inspection should be more narrowly tailored.

In preparing a protective order, it's important to understand from the outset exactly what equipment your adversary wants to access. Many times, unsuspecting - or unprepared - attorneys approach the meet-and-confer session on this issue without taking the time to consult with appropriate technology experts. This can result in disaster, such as inadvertently producing privileged information, or agreeing to a course of production that turns out to be extremely expensive. If you make either of these mistakes, your only hope is to petition the court and hope the judge is sympathetic.

If you've produced privileged documents and need to claw them back, start with Rule 3.724 (8)(E) of the California Rules of Court. Amended last summer by the Judicial Council, these rules let parties establish "the method for asserting or preserving claims of privilege or attorney work product, including whether such claims may be asserted after production" [italics added]. A clear clawback agreement established in advance - and a court motion, if it comes to that - may be the answer. Otherwise, a producer is likely to find that he or she has unwittingly created a waiver.

When a production agreement that was once "thought to be reasonable" has since turned into a money pit, either side may seek relief. But the judge is under no obligation to oblige. The agreement may well stand - much to your client's chagrin.

Absent the court's intervention, opposing parties must meet and confer on these and other issues 30 days prior to the initial case- management conference. That's where your grasp of the rules will determine whether your case becomes just another bit of routine e-discovery - or an e-discovery disaster.

Perry L. Segal is an IT executive turned e-discovery attorney and consultant. He is a member of the California State Bar's Law Practice Management and Technology Section Executive Committee.

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