Computer searches under F.R.C.P. 34(a) by private litigants; a Fourth Amendment issue?

Under the 2006 amendments to F.R.C.P. 34(a), it is now possible in a civil case for a litigant to get access to an opponent’s computer or a computer network to conduct their own search for electronic evidence if certain standards are met. See Nolan M. Goldberg, Is Your Data Wide Open to Your Opponent?, in the NLJ.

This is an interesting article, and it discusses case law and protective measures to insure that the computer search does not go too far or that protected or irrelevant information is not disclosed. One thing not mentioned that maybe should have been is whether a court authorized search of a computer should be governed by the Fourth Amendment. It is a private search if a private litigant is involved, but, if court approval for such a search is sought, is not the Fourth Amendment implicated because an arm of the government authorized it?

The standards mentioned in the case law would appear to satisfy at least an administrative search-type probable cause standard:

While the amendment to Fed. R. Civ. P. 34(a) was “not meant to create a routine right of direct access to a party’s electronic information system” such access “might be justified in some circumstances.” Fed. R. Civ. P. 34(a) Advisory Committee Note. The factors courts use to determine appropriate circumstances are:

• The specificity of the discovery request;

• The quantity of information available from other and more easily accessed sources;
• The failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources;
• The likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources;
• Predictions as to the importance and usefulness of the information;
• The importance of the issues at stake in the litigation.
• The parties’ resources.

Ameriwood Indus. Inc. v. Liberman, No. 4:06CV524-DJS, 2006 WL 3825291, at *4 (E.D. Mo. Dec. 27, 2006), citing Fed. R. Civ. P. 26(b)(2) Advisory Committee Note.

In practice, these factors have been found to favor an inspection when there was a showing of discovery irregularities, such as document deletion. See, e.g., Ameriwood, Id. at *5 (finding “specific evidence establishing that the defendants had not produced all responsive documents from their computers”). …