PROTECTING YOUR CLIENT'S COMPUTER HARD DRIVE FROM DISCOVERY IN TBI  [ back to List of Articles ]
Harvey A. Hyman, Esq.

In days gone by, people tended to commit their private observations, thoughts and ruminations to a paper diary or to paper letters mailed to trusted friends. These were regarded as confidential and private documents not to be read by anyone without permission of the author or the dead author's state. In modem times, people have stopped using quill pens, India ink and diaries. Many people prefer to objectify and file away their private thoughts by pushing a computer keyboard on a PC or laptop. This saves paper, saves time and promotes convenience.

The range of ideational material on a home computer is phenomenal. It can contain recipes for favorite meals, holiday shopping lists, medical, contact information in the event of sudden illness, a spread sheet of gross family income and fixed family expenses, a college savings plan for the children, a draft last will and testament, home made songs or poems, records of bizarre dreams, sexual fantasies, unsent letters to third persons (like a parent or employer) that served solely to vent feelings and avoid nasty personal confrontations, self-analytic probings, criticisms of relatives and friends, expressions of confusion, longing or sudden revelation in matters of the spirit or religion. The home computer will typically also contain downloaded photographs and music and a comprehensive record of Internet searches for health, family, business, legal and investment purposes as well as travel, entertainment, sports, leisure and hobbies. Personal sexual interests and oddities may well be exposed on the computer through searches of pornographic websites or ordering of pornographic videos or DVDs. Is there anyone who has not received unsolicited sex jokes, ethnic jokes or sick jokes on e-mail?

With the rise of telecommunications, e-commerce, e-mail and web browsing on the Internet, outsiders have a means of tracking certain aspects of computer usage to divine indirectly the values, habits and preferences of consumers. However, hacking — the unwanted intrusion of an outsider into one's computer files — is still regarded as unethical, offensive and illegal. It is widely recognized that the home computer is a private sanctuary entitled to privacy protections against vandalism by means of viruses or worms, spam (unsolicited mass advertising) and secret tracking of home Internet usage. Everyday we read about struggles between computer users and third parties (be they hosting services, merchants selling on-line goods or services or public agencies) over where to draw the line between improper intrusion and legitimate information gathering by businesses and government. The government knows how valuable computer records are to prosecute people. In criminal investigations into terrorism, tax fraud, illegal sports betting, religious cults, murder for hire and just about anything else you can think of, the FBI wants to get the computers as fast as possible by warrant before incriminating data can be altered or destroyed.

What does all this have to do with plaintiffs in traumatic brain injury litigation? Plenty. The plaintiff in a TBI case will invariably claim that the trauma caused by defendant's negligence injured his brain and significantly disturbed and impaired his functioning in one or more of the essential domains of human functioning: cognition (including attention, concentration, memory, abstract thinking, judgment, self-monitoring, organization and multi-tasking); personality, emotion, social and sexual relating; the capacity to work and earn a living in one's chosen field; sleep, energy, cognitive and physical endurance, immune function and the capacity to handle stress. The most common defense in TBI cases is that the plaintiff is not brain injured, but is malingering or acting out a chronic psychological condition that pre-dated the traumatic incident, such as depression, anxiety, somatoform disorder or narcissistic/histrionic personality disorder.

In an effort to investigate and undermine the claim that plaintiff's TBI has led to a significant and permanent decline from his pre-incident baseline level of functioning, the defense has customarily had the plaintiff interviewed by "experts" including a neurologist, neuropsychologist and psychiatrist; deposed the plaintiff, his current or former significant others and current or former employer; and subpoenaed pre and post incident education, work, health and insurance records along with membership records of any clubs, societies, organizations or fitness facilities to which he belonged. Now the defense is trying to get our clients' computers.

In a recent case of mine pending in state court in Oakland, California, a 38-year-old male client suffered "mild" TBI from cumulative concussions in two motor vehicle accidents 3 and 1/2 months apart. As a consequence of this, Mike (a mild mannered, soft spoken devotee of yoga), became highly distractible, frustrated and irritable and exhibited angry outbursts lacking in social judgment. Through medical records, defense counsel learned that Mike's great aunt had been diagnosed with schizophrenia. This led him to believe my client's problem was not TBI but schizophrenia. My client's treating neuropsychologist, his treating psychiatrist and our forensic expert in neuropsychology confidently stated in then reports that this was not the case, and gave convincing medical reasons. Mike's former employer and former fiancee were deposed and stated emphatically that plaintiff was not, and never had been, crazy or exhibited the kinds of behaviors associated in the DSM IV with that condition. Defense counsel was not persuaded. When he learned in deposition that my client used computers at home to communicate with his friends and his lawyer and to do research into a variety of areas, including traumatic brain injury. The defense attorney served my client with a Demand for Production of Documents that included a request for physical production of all computer hard drives of all computers my client had used during the preceding 7 years, and over which he still had possession, custody or control. The demand set forth no reason for the production of the computers and did not identify with particularity the specific information sought. It set forth no protocol for shielding of e-mails exchanged by my client and I which were absolutely protected by the attorney-client privilege or for protecting the reasonable privacy expectations of third parties who had communicated with my client. It did not allow me, my client or my expert to be present at the inspection of his computers so we could object to actions proposed by defendant's expert, and terminate the inspection. It did not tell us where the defense expert was going to examine my client's computers, or how or with what type of equipment. It failed to set forth any description as to who the expert was, his qualifications or how he planned to inspect my client's computer hard drives without altering, corrupting or damaging the contents.

In my client's behalf I refused to produce any of his computers and interposed multiple objections on a timely basis. The objections included: (1) attorney-client privilege; (2) a general request for production of all computers is overbroad, unduly burdensome, vague and constitutes an improper fishing expedition without specifying the relevance of the information sought or the probability such information would lead to discovery of admissible evidence; (3) lack of good cause proving an examination of his computer was particularly likely to reveal the information sought and there were no other, less intrusive means of obtaining the information, pursuant to Fennell v. First Step Design 83 F.3d 526,534 (1st Circuit 1996); (4) violation of privacy rights of third parties who communicated with plaintiff with the legitimate and reasonable expectation their communications would not be read by a stranger; (5) failure to set forth an inspection protocol showing the computers would be handled in a safe manner not likely to damage them or their contents, that all privileges would be honored, that no information would be lost, and that plaintiff, his counsel and plaintiff's expert would be allowed to be present throughout the inspection; and (6) failure to set forth who will bear the expense of the production, the inspection, the security measures implemented in the inspection and the repairs, if necessary.

Not surprisingly, defense counsel made a motion to compel production of the computer hard drives alleging the computers could contain evidence of defective or bizarre mentation prior to the car accidents that would show plaintiff's cognitive status had not been changed by the trauma. In my opposition I made it clear to the judge there was nothing in the computers regarding plaintiffs mental status, either actually or potentially, that defendant did not already have access to by its depositions of the plaintiff, his former employer, his former fiancee and his treating doctors; through interviews of his family members and friends by their private investigator; through medical examination of the plaintiff by a neurologist, a neuropsychologist and psychiatrist of their choosing; and by subpoenaing of his pre and post incident educational, work, health and insurance claim records. Hence, this massive and offensive intrusion into his mental privacy was not necessary, because there were other ways of getting the information.

In my brief I stated: "I have litigated scores of closed head injury cases and have never seen such a request for computers before. It is simply not necessary to suck all the personal and private information out of a plaintiff's computer in a bodily injury case (and raise the grave risk of invading attorney-client privilege) when so much other evidence of his cognitive and emotional functioning exists independently of the computer, including school, health and employment records; testimony of treaters; testimony of significant others; neurologic testing; and neuropsychological testing. I note that this defendant has already had plaintiff assessed by a neurologist, a neuropsychologist and a psychiatrist. None of those experts requested his computer records to assess his mentation, his personality or his psychological make up. In my experience such experts do not need or ask for that material. Defense counsel's request for plaintiffs computers raises the prospect of harassment, morbid curiosity or the desire to inflict the psychological pain of intruding into plaintiffs privacy. There are other, far less intrusive ways, to skin this cat."

The judge issued his tentative ruling denying the motion. Defense counsel came in to argue against the tentative ruling, but the judge held firm and entered an order denying the motion. The judge's reasoning for the decision, stated on the record, was interesting and worth noting. All quotations below signify paraphrase based on my recollection of what the judge said, as I have not received a transcript at the time of this writing. The judge said he was "very troubled" by the defense request to rummage through plaintiff's computers where his inmost thoughts were stored. The judge did not agree with the view that simply being in a car accident and alleging a closed head injury made every aspect of a plaintiffs life "fair game" for discovery. He told defense counsel, I don't know about you, but I would not like to live in a world where merely being in a car accident, and alleging a closed head injury, would allow the defense lawyer to seize my computers and rummage through them at his leisure looking for evidence of problems with my thinking or behavior before the incident." He then queried: "What are you actually looking for? If you find he ordered a porno video is that really relevant, admissible evidence of disturbed behavior?" Defense counsel responded: "Well, if he never ordered porno videos before the incident, but the day afterwards he did, that could be proof of a change."

In response the judge said: "That's not good enough. What does ordering a porno video signify. It's ambiguous. It could be done for many reasons. The plaintiff has an attorney-client privilege. He has privacy rights. You can't just sift through all the contents of his computer on a fishing expedition. You really don't know what you're looking for. You're just hoping you'll find something. That's what a fishing expedition is." Defense counsel replied: "Well, you can protect his rights, your honor, by doing an in camera inspection and determining what files can be released." The Court was not pleased. The judge replied: "I do not want to spend 100s of hours sifting through everything on this man's computer, and for each item deciding what possible relevance the data could have regarding change in mental condition. I would need a crew of experts looking over my shoulder to advise me. This is not an efficient use of the court's time." I chimed in that invoking the court's coercive power to pour over the entire content's of a plaintiff's home computers was an Orwellian intrusion into privacy, that would necessitate undue consumption of the Court's time ruling point by point on objections to files and subfiles, a rather pointless exercise in view of the copious amount of public information about plaintiffs functioning in education, work and health records, in depositions of witnesses, interviews of family and in forensic examinations of the plaintiff by each side. The Court said: "Beyond this kind of discovery, what more do your really need? This is overkill."

The defense's last attempt was to say: "Well, what if at trial Mr. Hyman tries to prove his client suffered a TBI by offering e-mails printed off his client's hard drive to show a decrease in mental capability after the car accident? We would be prejudiced if we did not have prior access to the e-mails." The Court found this to be speculative. The possibility of what I might do in the future did not bear on whether defendant had good cause now to access the computers. I advised the Court we had already supplied a verified response to a production request for all correspondence bearing upon the incident or the injuries claimed to have resulted therefrom." Finally, I told the judge, I would not spend my time opposing the request to invade my client's computers if I planned to use computer documents at trial to illustrate my client's deficits, which would open up the whole can of worms - and I certainly do not need to do that - there's plenty of more tangible, more direct evidence on that issue in the public domain such as complaints to doctors, failures on the job, breaking up with his fiancee, etc."

So what does all this mean for the TBI cases yet to come? I have to assume (without canvassing my colleagues) that more and more defense attorneys will be asking for computer records, if not for physical production of computer hard drives in these cases, and they will use all their creativity to come up with persuasive reasons why they should have access. Way back in law school, I was taught that the 1st Amendment protects not just the freedom to speak, but the freedom to say nothing. Human dignity cannot survive application of the coercive power of government to empty the contents of the minds (or the computers) of its citizens. While there may be rare exceptions, possibly overwhelming evidence of contemporaneous acts of treason or aiding terrorists planning to inflict imminent harm on large numbers of the population, being in a car accident and alleging a closed head injury surely is not one of them. Anthropologists who visited aboriginal cultures found they were not permitted to take home photographs of the tribes people they interviewed, based on the belief that a photo captures the soul of the subject. In our federal Constitution the 5th Amendment was enacted so no citizen could be forced to lay bare his private writings so they could be used to prove his guilt of a crime and send him to jail. Based upon due process, the American courts put a stop to police use of sodium peritothal as a truth serum that supposedly paralyzed the conscious mind and took away the subject's capacity to refuse to give up his knowledge. What all these items have in common is the simple truth that individual freedom and dignity require a zone of mental privacy around each individual giving him an agreed amount of control over his inner thoughts that society, its police and courts cannot penetrate. I would urge my colleagues in civil litigation for persons with a brain injury to resist future attempts by the defense to seize their client's computers and rummage through them, hoping to find something, anything, with which to discredit them. They are welcome to use the arguments I made, and welcome to add to and improve upon them. Appellate case law is yet to be made on these issues, which will be fought in every appellate district in every state until high courts begin taking these cases and drawing lines. I salute the judge in this case for refusing to listen to the defense lawyer's siren songs about the rationality and legitimacy of seizing and rummaging through home computers of a plaintiff. I hope other judges will show the same clarity of thought, the same sensitivity to human freedom and dignity and the same courage he did.