Right to Privacy v. eDiscovery Request for Inspection: A Critical eDiscovery Case Law Alert Summarizing Roque v. Swezy, Civil Action No. 3D23-1836, 2024 WL 1895141 (Fla. 3d DCA May 1, 2024).
Provided by BLS eDiscovery’s Jacinda Béraud
Elizabeth Roque initiated a lawsuit against her former romantic and business partner, Lewis Swezy, for breach of fiduciary duty, breach of contract, and tortious interference as well as abuse, assault, defamation, and IIED. Swezy’s counsel propounded discovery requests in the form of interrogatories, requests for production, and requests for inspection requesting a forensic expert copy of the entire contents of Roque’s cellphone. The expert copy would include photos, videos, texts, emails, notes, downloads, and all data and metadata including deleted items. Roque’s counsel objected to the forensic copy and review of her entire cellphone, specifically asserting violation of her right to privacy and lack of legitimate justification or need for such intrusive discovery requests. The trial court issued an order for a forensic expert approved by both parties to make one copy of Roque’s cellphone and have her attorney review its contents. Roque’s attorney would then produce only non-privileged items that were within the scope of the order. There were no findings, however, about items being deleted or destroyed or a threat of deleting or destroying content. Roque’s attorney filed to obtain certiorari relief.
Roque argued that a reasonable expectation of privacy exists, and where there is a reasonable expectation of privacy, a trial court is required to balance this right of privacy against the need for the discovery. The burden is on the requesting party to establish the invasion is warranted and is the least intrusive means to obtain the discovery sought. Swezy argued that making a complete copy is cost effective and, therefore, the best course for obtaining the ESI.
In its ruling, the Third District Court of Appeal relied on Winfield v. Division of Pari-Mutuel Wagering, Dept of Bus. Reg., 477 So.2d 544 (Fla. 1985) and Wharran v. Morgan, 351 So.3d 632 (Fla. 2d DCA 2022), wherein it was held that the trial court erred in permitting a “sweeping range of information” without first determining their relevance and balancing the need for the information against the expectation of privacy. The Court also cited Menke v. Broward County School Board, 916 So.2d 8, 11-12 (Fla. 4h DCA 2005), where the court held that the trial court erred in granting the inspection of a computer’s hard drive; specifically noting that an intrusive search of the entire computer by an opposing party should not be the first means of obtaining the relevant information.
The Third District Court of Appeal found in favor of Roque and held that a limited and strictly controlled inspection of information stored on electronic devices may be permitted. The Court, relying on the Menke, appropriately found Rule 1.350 to be broad enough to encompass requests to examine electronic information storage devices but only in limited and strictly controlled circumstances. The Court further noted that because of the need to uphold the right to privacy and determine the least intrusive method to obtain the information sought, the best method to review the information is usually not the quickest. Specifically, there needs to be a determination of (1) whether the device is likely to contain the requested information; (2) whether the evidence is present or has been destroyed; (3) whether the party is attempting to thwart discovery; and (4) whether there is a less intrusive means to obtain the requested information. Overall, the Roque decision echoes the ongoing concerns for the protection of the constitutional right to privacy when obtaining discovery, which should be done in the least intrusive method possible.