2014 Ohio 1729
Ohio Ct. App.2014Background
- FFR sues DeJohn and Kump in Cuyahoga County for breaches of confidentiality and nondisclosure, misappropriation, unfair competition, and related claims.
- FFR sought discovery; DeJohn and Kump allegedly provided incomplete responses and resisted production of confidential information.
- FFR sought electronic discovery—defendants opposed, proposing protective measures and later seeking their own discovery preservation.
- Trial court ordered production of electronic discovery and hard drives for attorney's eyes only; later ordered forensic imaging.
- Appellate court reviewed under Bennett framework, concluded no sufficient showing of noncompliance and lacking protective protocol, reversed and remanded.
- Judgment reversed and costs awarded to appellants; mandate issued for new proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred in granting forensic imaging and broad hard-drive access | FFR argues imaging is necessary due to noncompliance and potential spoliation | DeJohn, Kump contend imaging invades privacy and confidentiality and requires safeguards | Yes; order abused; imaging not warranted without Bennett protections |
| Whether the court properly weighed discovery utility against privacy interests | FFR asserts compelling imaging outweighed privacy due to noncompliance | Defendants argue insufficient noncompliance and privacy protections | Yes; first Bennett step not met; need for balancing not satisfied |
| Whether protective protocols were required and provided | FFR advocated standard protocol with independent expert and privilege review | Defendants argue lack of protocol risked disclosure of confidential information | Yes; protective protocol required but not provided; court abused by failing to implement Bennett protocol |
Key Cases Cited
- Bennett v. Martin, 186 Ohio App.3d 412 (10th Dist. 2009) (two-step Bennett framework for forensic imaging and privacy protection)
- Scott Process Sys. v. Mitchell, 2012-Ohio-5971 (5th Dist. Stark 2012) (abuse of discretion for imaging without background of noncompliance; need protective protocol)
- Nithiananthan v. Toirac, 2012-Ohio-431 (12th Dist. Warren 2012) (protective protocol required; independent expert, privilege log, and disclosure steps)