Subpoena for Personal Computer in Civil Defamation

Subpoena for personal computer as part of discovery. The defendant used real name when posting and plaintiff, who is, as far as I can tell, a public figure, filed defamation suit. Now he's subpoenaed computer under the discovery rule even though he has copies of the posts and knows the id. Very strange.

That a subpoena's been issued in spite of supposedly knowing the identity of the person isn't strange to me. After all, the identity does need to be confirmed. But two things strike me as very odd. 1) It's usually an ISP or the owner of a site on which the posts were published who is served with the subpoena to confirm identity, and not the person whose identity they're trying to confirm. 2) What doesn't make any sense is the subpoena of the computer itself. The subpoena is supposed to require the defendant to produce information ON the computer, not the computer itself. After all, the computer as a piece of equipment has no material relationship to the defamation claim. Subpoenaing the computer one uses to post something supposedly defamatory would be like subpoenaing the ballpoint pen used to hand-write a defamatory statement.

Subpoena is for computer or computers used to post comments in order to copy, inspect, etc. (standard subpoena language). Plaintiff is local chief of police and politician. This is just scary. It is being fought, but you never know ...

Any CMLP layers reading this care to chime in?

The bottom line answer is that, yes, personal computers can be the subject of a subpoena in a civil dispute. Subpoenas for personal computers have been issued in a variety of contexts, including employment disputes (Hardin v. Belmont Textile Mach. Co., 2007 U.S. Dist. LEXIS 57937 (W.D.N.C. Aug. 7, 2007)), contract disputes (Hoover v. Florida Hydro, Inc., 2009 U.S. Dist. LEXIS 17261 (E.D. La. March 6, 2009)), and invasions of privacy (Integrated Service Solutions v. Rodman, 2008 U.S. Dist. LEXIS 101653 (E.D. Pa. Nov. 3, 2008).

As a general rule, parties may seek material regarding any non-privileged matter that is relevant to any party’s claim or defense during discovery. A court will allow a request so long as it appears to be reasonably calculated to lead to the discovery of admissible evidence. This standard permits a broad scope for discovery. For files stored on computers, a party may request to inspect, copy, test, or sample any designated documents or electronically stored information in any medium from which information can be obtained, or any designated tangible thing (which would include a personal computer).

A court will balance the broad scope of discovery against considerations of duplicative or extremely burdensome requests that would outweigh any likely benefit. Thus, a subpoena would be quashed if it would require disclosure of privileged or other protected matter, or if it would subject a person to an undue burden. In the case of a subpoena for a personal computer however, it is unlikely that the court will find that there is an undue burden absent special circumstances.

This does not mean that the requesting party will necessarily have direct access to a subpoenaed computer or that the requesting party will be able to run willy-nilly through its files for the entire period of discovery. Generally, the computer’s hard drive will be imaged, a process which would typically take a day or two, after which the computer and hard drive are returned to the owner. In addition, a court will encourage the parties to develop a protocol for conducting the inspection in a way that will be protective of personal information and sensitive files unrelated to the case at hand. In many situations this is achieved by allowing a neutral third party, such as a forensic analyst, to conduct searches for files. Both parties will reach an agreement on key words that are likely to lead to files related to the issue in dispute. The files returned by the search are reviewed for relevance to the matter at hand, and only the relevant files are turned over to the requesting party.