2019 Ohio 4055
Ohio Ct. App.2019Background
- Allied (assignee of Blue Star) sued Nautica and others alleging tortious interference, fraud, and conspiracy arising from unauthorized wristband admissions at a Kid Rock concert during the 2016 RNC.
- The parties initially agreed at a case-management conference to exchange paper discovery only.
- Allied later discovered a discrepancy: Barth’s produced email contained the term wristbands while Horoszko’s copy did not, prompting suspicion that Horoszko’s email had been altered and that additional ESI might be missing.
- Allied moved (within a motion to show cause) to compel ESI; the trial court ordered a third-party vendor (Vestige) to produce a forensic ‘‘mirror image’’ of all Nautica computers used by Horoszko and adopted Allied’s proposed ESI order verbatim.
- Nautica appealed, arguing the court failed to apply the Bennett balancing test, the order was overbroad, and the protective measures (privilege review timing, lack of search terms, etc.) were inadequate.
- The appellate court held imaging was justified given the email discrepancy and Nautica’s discovery problems, but reversed insofar as the trial court failed to require adequate protective protocols (search-term process, independent expert procedures, reasonable privilege-review time) and remanded for a tailored protocol.
Issues
| Issue | Plaintiff's Argument (Allied) | Defendant's Argument (Nautica) | Held |
|---|---|---|---|
| Whether forensic mirror imaging was warranted despite initial agreement to paper discovery | Imaging was warranted because the conflicting email suggested alteration and possible further withheld/deleted ESI | Imaging was unnecessary; parties had agreed to paper discovery and Nautica’s privacy interests and burden outweigh need | Imaging was warranted: the email discrepancy plus history of discovery noncompliance satisfied the first Bennett prong |
| Whether the trial court provided adequate protective protocols to safeguard privileged/confidential ESI | The adopted ESI order and protective order (SPO) were sufficient; Vestige would be bound by confidentiality | Order lacked key protections: no independent expert appointment, no court-selected search-term process, only 3 days for privilege review, risk of exposure of irrelevant/private/proprietary data | The court erred: protections were insufficient. Appellate court reversed that part and remanded for more robust protocol (search-term procedure, independent/expert safeguards, reasonable privilege-review period) |
| Whether the scope of the imaging was overbroad or limited to ESI reasonably calculated to lead to admissible evidence | Broad imaging of devices used by Horoszko was necessary to locate deleted/altered emails relevant to claims | Order was overbroad (‘‘all Nautica’s computers used by Horoszko’’) and could capture irrelevant personal/proprietary data without limiting search terms | Scope warranted given circumstances, but order must be narrowed/controlled by a protective protocol (search terms, limitations on irrelevant data) |
Key Cases Cited
- Ward v. Summa Health Sys., 943 N.E.2d 514 (Ohio 2010) (Ohio courts favor liberal discovery).
- Moskovitz v. Mt. Sinai Med. Ctr., 635 N.E.2d 331 (Ohio 1994) (scope of discoverable matter).
- Bennett v. Martin, 928 N.E.2d 763 (Ohio App. 2009) (forensic imaging requires weighing necessity vs. privacy and a protective protocol).
- Blakemore v. Blakemore, 450 N.E.2d 1140 (Ohio 1983) (abuse of discretion standard).
- Simon Prop. Grp. L.P. v. MySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000) (permitting inspection of deleted files where document-production discrepancies exist).
- Playboy Enters., Inc. v. Welles, 60 F. Supp. 2d 1050 (S.D. Cal. 1999) (forensic imaging authorized where codefendant produced email the other did not and deletions were customary).
- Wynmoor Cmty. Council, Inc. v. QBE Ins. Corp., 280 F.R.D. 681 (S.D. Fla. 2012) (model collection/review protocol for forensic imaging).
- Bank of Mongolia v. M&P Global Fin. Servs., 258 F.R.D. 514 (S.D. Fla. 2009) (protocols and protections for ESI collection and review).