By Tanya Basu

Equity Analytics, LLC v. Lundin, 248 F.R.D. 331 (D.D.C. Mar. 7, 2008)

Employees Implicated: Former employee.

eLesson Learned: Expert testimony, which meets the requirements of Fed. R. Evid. 702 ^[1], will be required by the court to determine what search terms are sufficient when probing for electronically stored information (“ESI”) on an ex-employee’s personal computer.

In Equity Analytics v. Lundin, Magistrate Judge John M. Facciola, tackled the issue of how to let an employer search an ex-employee’s personal computer in a lawsuit over whether that employee illegally accessed the company’s ESI. 

Equity discovered that its former employee, Timothy Lundin, had accessed the company’s Salesforce.com account after he was terminated.  Lundin explained that another Equity employee had given him permission to use the employee’s username and password to access the Equity computer system.  Lundin admitted that he had accessed the system some 18 times over a 90-day period, and had used his personal Macintosh computer to do it.  Around the same time Equity discovered the unauthorized access, Lundin downloaded a new operating system onto his computer.

Equity wants to search Lundin’s computer, but the two sides could not agree on how to do it.  Lundin had started working out of his home for Equity’s competitor and used his personal computer and portable hard drives to store data and for many purposes.  Therefore, Lundin’s computer and the hard drives contain: (1) attorney-client communications; (2) business records; (3) medical records; (4) tax and banking records; and (5) data (including images) created for his professional photography business.  Lundin wanted Equity to use specified search terms and file types.  Equity wanted broader access to the computer, and argued that Lundin may have altered and hidden files.

Facciola reached a compromise for the parties.  Interestingly, Facciola admitted that “determining whether a particular search methodology, such as keywords, will or will not be effective certainly requires knowledge beyond the ken of a lay person (and lay lawyer) and requires expert testimony that meets the requirements of Rule 702 of the Federal Rules of Evidence.”  He ordered Equity to submit an affidavit from their forensics examiner explaining the following:

1. Why the limitations proposed by plaintiff are unlikely to capture all the information Equity seeks and the impact, if any, of the loading of the new operating system upon Lundin’s computer and the data that was on it before the new operating system was loaded;

 

2. How the search will be conducted; and

 

3. Whether there is any possibility that the mirror images will not be perfect copies of the hard drives, and whether there is any need to preserve the hard drives in their original condition once the mirror images are created.

Based on that information, Facciola reserved the right to make a balanced decision.

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