In Gateway Logistics Inc. v. Smay, 2013 CO 25, the Colorado Supreme Court held that privacy rights can bar over-reaching discovery requests. A party to the case “sought to inspect personal and business computers, smartphones, and other electronic storage devices” belonging to the opposing party. The discovery sought included “approximately three years” of telephone records.
The “trial court abused its discretion by failing to make findings of fact balancing” privacy rights against the “need for the information.” See In re District Court, 256 P.3d 687, 691–92(Colo. 2011). Any information must be relevant, a compelling need for the information must exist, and if so, “whether that information can be obtained elsewhere.”
The discovery requested was extensive: “personal computers, business computers, lap-top computers, servers, hard drives, CDs, DVDs, USB drives, thumb drives, memory sticks, floppy disks or any other portable data storage device, including but not limited to BlackBerries, iPods, iPads and iPhones.” iPods?
The court described “forensic imaging,” which allows a computer expert to “search the image as if it were the computer without depriving the computer’s owner of his or her machine.”
Because motions to compel discovery are “committed to the discretion of the trial court,” the Supreme Court reviews a discovery order for an abuse of discretion. But in any case “where a party has asserted a right to privacy in the information being sought through discovery,” the trial court must perform “the required balancing test” as set forth in In re Dist. Court, 256P.3d at 692, supra. Failing to perform that test appears to be a per se abuse of discretion.
To be sure, the scope of discovery is “very broad.” Parties may discover “any matter, not privileged, that is relevant to the claim or defense of any party,” and the information wanted “need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”
However, if a party objects on grounds of confidentiality or privacy, “the trial court must balance the policy in favor of broad disclosure with the individual’s right to keep personal information private.” The party seeking discovery must “prove that it has a compelling need for the information,” and thus that “the information requested is relevant to the subject of the action.” The burdens then shift a bit back and forth, but in any event, the trial court must allow the parties to present their reasons for or against discovery.
Individuals do “have a privacy interest in their electronically stored information, including personal correspondence and records, on their computers, smartphones, and other electronic storage devices.”
The court noted that “computers now play an ‘ever greater’ role in daily life and serve as repositories for increasingly more and different kinds of information.” Usually, courts fall behind the technology curve, but good courts strive to keep the crest in sight.