Thursday, Nov 30, 2006    Text size: 

The changes in the law widen the scope of electronic discovery, handing plaintiff attorneys the right to subpoena information stored on a home computer if it has been used for work purposes. The new target for e-discovery will be metadata — the electronic history of any document — and court-ordered IT technicians can be sent to extract it from home computers under certain circumstances.

“The reason [the new rules] have privacy concerns, despite the limitation that a party may only seek and obtain discovery of information that is relevant to the claim or defense, is that the IT technician could find something on the employee’s hard drive that he doesn’t want his employer to know,” an involved attorney told XBIZ. “For instance, maybe he was downloading some pornography. Is that relevant to a claim or defense in a litigation? Absolutely not. But now the employee realizes his employer and maybe his spouse are going to find out what he’s been doing on his computer.”

The attorney said that if an employee attempted to hide the fact that he’d downloaded porn by wiping the hard drive of his computer, he would be open to charges of concealing evidence.

“There’s nothing about e-discovery that changes the scope of what is discoverable, but it has the practical effect of producing internal conflicts because certain employees may want to conceal things that are personally embarrassing,” the attorney said.

Because most corporate information is stored electronically, office computers and servers have been the target of discovery during litigation in the past. The new rules allow discovery of previously unexplored territory.

“It’s not a comforting picture, opposing counsel with access to your private Internet activity,” the attorney said.