Case Law Provides Cues for Rising Interest in Forensic Collection

When it comes to the scope of discovery in civil litigation, there is a misconception that the plaintiff has no right to privacy. A recent case, Roque v. Swezy, challenged that myth and set an additional precedent in mobile device discovery. Counsel requested a highly detailed forensic image of the plaintiff’s cell phone for discovery. That did not go over well with the plaintiff who said it was a violation of her privacy.

The back-and-forth went something like this:

• The Judge: “Yes, you can get the forensic image.”
• Opposing counsel: “Wait a minute, no way” and they appealed.
• The higher court: “No, you can’t, you don’t need all that personal data…unless you have evidence that there is missing data.”

Before we get into the details of the Roque v. Swezy case law, let’s start from the beginning of the procedural history.

Elizabeth Roque filed claims against her former domestic partner, Lewis Swezy (and two related companies), for breach of fiduciary duty, breach of contract, and tortious interference, all allegedly involving business disputes between the parties. Roque also alleged claims of abuse, assault, defamation, and intentional infliction of emotional distress committed against her by Swezy, asserting in her operative complaint specific incidents of violence.  

In the initial round of discovery, Swezy propounded interrogatories and a request to produce. He also filed a request for a forensic review of Roque’s cellphone. He wanted the entire contents of the cell phone copied, including every photo, video, text, email, note, download, and all the data and metadata, including deleted items. Swezy believed it was necessary and timely to request a forensic review. BUT…he did not proffer any showing, nor even allege, that Roque had destroyed or deleted, or threatened to destroy or delete any data or evidence. He believed the forensic review was the least intrusive means available to get the information and “quicker and more efficient than Roque having to review and send every piece of forensic evidence that would otherwise be discoverable.

Roque objected to the request, asserting it was a violation of her right to privacy. And Swezy offered no legitimate justification or need for the intrusive discovery. But the judge granted Swezy’s motion for forensic review. That’s when the opposing counsel filed a petition seeking a writ of certiorari to revoke the trial court’s order. Which now brings us to how and why this case set a new precedent in balancing privacy with how cell phone discovery should be conducted.

The higher court granted the petition for writ of certiorari – quashing the order by the lower court. Here’s why:  

• Swezy failed to establish that there was any actual or threatened alteration, deletion, or destruction of data on Roque’s cellphone. 
• He also failed to establish that there were no less intrusive means to obtain the information sought. 

So, what might be a “less obtrusive means to obtain the information” sought in a case like this? Hiring a neutral third-party legal technology professional to perform verified data collection from the beginning. They can collect data efficiently and effectively across a variety of media including social, email, text, slack, cell phones, and more. They also can pull underlying metadata and connected files unseen by the citizen eye. This can give trial lawyers the evidence needed to request forensic review, if discovery does in fact appear to be missing data. But how do you prove something is deleted if it is deleted? Here’s an example.

In a multi-year construction case, Plaintiff’s discovery is produced and reviewed by Defense counsel’s litigation technology experts who combed through the data using top-line legal technology to capture and authenticate the evidence. That’s when the expert advised that something was amiss. Here’s what they found—or didn’t find.

• Only 120 emails for a multi-year construction project. Any business transaction at all would produce more than 120 emails alone.
• Emails in production were missing linked documents.
• Documents over a chunk of time were missing. Everything after January 2023 was available, but the project began in November 2022.
• Parent/child data relationships were missing among some files.
• Emails or documents available as “received” and produced by Defense discovery are absent as “Sent” by Plaintiff discovery.

So, in the case of Roque v. Swezy, if upfront discovery by a professional legal tech had been performed, and suspect information similar to the above case had been uncovered, the plaintiff may have had to comply with the request and submit her cell phone for forensic imaging.   

Key takeaways? 

Having a legal tech partner on your team can keep you prepared before and during a trial. JURIS LTS can help you protect your client’s data and detect missing or poorly conducted discovery by opposing counsel.  

Resist the urge to let the client self-collect discovery. Clients are unskilled and imperfect at data collection, omitting data by accident or purposefully. Allowing self-collection carries a significant risk to the integrity of a case, especially when the stakes are high.

JURIS LTS, legal tech professionals for more than 20 years and 100s of cases, are here to help. Start your data collection with JURIS LTS today and produce discovery efficiently and effectively!