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A Digital Forensic Examiner Making Privilege Determinations-for the Opposing Party?

In In re Suhy (CL-2023-0017 and CL-2023-0018, Apr. 7, 2023), the Alabama Court of Civil Appeals ordered a father to produce his electronic devices to his wife’s digital examiner to determine if they supported her claims he sexually abused their minor children, exposed their minor children to pornography, and that the father failed to provide a suitable environment. (Assuming a forensic examination uncovers pornography on any of the devices, the mother must still prove the claim that the children were exposed to it.) The Suhy case is interesting not only for the fact that the court supported the trial court’s order requiring the examinations, but also for the other consequences of the opinion: In order to protect the father’s claim that his devices contain attorney/client privileged communications, the forensic examiner is prohibited from showing the mother or her attorney any of the father’s privileged communications. Which means, obviously, that the examiner must determine what is privileged or attorney work product.

The case was before the Court of Civil Appeals on the father’s petition for a writ of mandamus, in which he argued that the trial court’s order granting the mother’s motion to compel the forensic examinations in a child custody modification case violated a clear legal right. The court denied the petition.

Suhy first outlines a lengthy procedural history since the parties’ divorce in 2020 that awarded sole custody to the mother but granted visitation to the father. A subsequent proceeding denied the father’s petition for a change of custody but held the mother in contempt for violating the divorce judgment. Then the mother filed a petition seeking suspension of the father’s visitation, claiming that the father did not maintain a suitable residence and alleging sexual abuse of the children by the father. The father again sought custody of the children and asked the court to limit the mother’s visitation to supervised visits only. The trial court consolidated these proceedings. So far, while the parties’ allegations are disturbing, they are certainly not uncommon in domestic relations cases. It certainly has been a contentious three years.

In that context, the mother made a demand for inspection of the father’s electronic devices in order to seek evidence that he had exposed the children to pornography, had sexually abused the children, and did not maintain a suitable living environment for the children. The husband’s response was what one might expect: the allegations were baseless, the demand for inspection was a fishing expedition, was intended to harass him, and sought discovery of confidential and privileged communications. When the father refused to allow the forensic examinations, the mother filed a motion to compel and sought sanctions in the way of attorneys’ fees. While not arguing that the evidence sought was irrelevant, the father sought a protective order disallowing the examinations based, in part, on attorney/client privilege.

The trial court partially denied the motion for a protective order and required the father to produce his devices for digital forensic examination at the mother’s expense. The trial court’s order stated:

[The father] may not assert the attorney/client privilege in such a way as to shield entire devices from examination by [the mother’s] expert. If [the father] believes that there are emails, documents or other forms of electronically stored information on his devices that are privileged communications or contain privileged information, he must assert the privilege as to those items by filing a motion seeking protection from disclosure. Upon the filing of such a motion [the mother’s] expert is stayed from examining those items pending the court’s ruling as to the asserted privilege.

In a separate order, addressing the mother’s motion to compel, the trial court ordered the father to produce his devices for examination by the mother’s digital forensics expert, but ordered:

The mother’s expert shall not disclose to the mother or her attorney, (i) confidential military electronic messages related to the father’s military employment, (ii) any evidence of communication between the father and his attorney or any files related to those communications, and (iii) military issued devices related to the father’s employment.

The father did not argue that the ESI sought was not relevant. The Suhy opinion states that the father’s primary argument is that the allegations exist only in the mother’s mind and that they are not supported by any other evidence. Indeed, the father asserts that evidence from multiple law enforcement agencies would show an absence of supporting evidence given the mother’s “shopping around to various police departments in the hopes an accusation would stick…” In response, the Suhy court wrote, “Because the trial court could have determined that the mother’s discovery request was relevant to the allegations in her petition and had the potential to lead to admissible evidence, we do not conclude that the trial court erred in declining to deny the mother’s discovery request as an impermissible fishing expedition.” This statement certainly supports requiring forensic examinations under the rules of civil procedure, and the argument could be made that no other evidence is needed in order to compel such examinations.

The opinion gets even more interesting in the court’s treatment of the father’s numerous privilege assertions (including spousal privilege, attorney/client privilege, and personal information of third parties) and confidentiality claims (not to mention granting access to potential military communications). As an initial matter, the court recognized the father’s failure to enumerate specific communications claimed to be privileged, and that such a showing is required under Ala.R.Civ.P. 26(b)(6).

The Suhy court went on to conclude that the trial court adequately protected the father’s privilege claims through a Rule 26(c) protective order. “In accordance with Rule 26(c), the trial court in the present case directed that the mother’s expert shall not disclose to the mother or her attorney certain communications, messages, and devices with regard to the information protected by the attorney-client privilege and other files related to the father’s legal case (e.g., attorney work product) or information related to the father’s employment.”

The court concludes the opinion by addressing several arguments the father made in the mandamus petition but are not in the trial court record. Accordingly, the Court of Civil Appeals did not substantively address those arguments and the court denied the father’s mandamus petition, which leaves in place the trial court’s order compelling the forensic examinations.

In short, this means that the forensic examiner is left to make privilege and work product determinations for the opposing party. The various orders of the trial court and the Court of Civil Appeals provide the expert with no guidance in making those determinations—the trial court’s order quoted above denying a motion for a protective order was, in substance, the trial court’s entire order. Not only does the trial court compel the examinations sought, but it requires the forensic examiner to determine what is privileged or work product—without guidance or criteria—and not provide that to the mother or the mother’s attorney. Without criteria or guidance.

So, what are the takeaways? First, the Suhy opinion provides support for seeking and compelling examination of an opposing party’s electronic devices with no evidence supporting the demand—the only criterium is relevance under Rule 26. The Court of Civil Appeals found that the information sought meets the definition of relevance for purposes of discovery, and therefore the trial court did not exceed its discretion in ordering the examinations. If you are opposing such a request, assert specifics as to the proportionality factors for discovery, including overbreadth, undue burden, and other factors that are not strictly monetary. While the argument can certainly be made that the context of this case—allegations of sexual abuse in a custody matter—can change the threshold for requiring an examination, nothing in the Suhy opinion limits its application in that manner.

Second, make specific assertions of privilege as to specific communications or work product, at least as examples. Then address the notion of allowing the opposing party’s expert to make privilege determinations in the first place. The father argued before the appellate court that the trial court’s ruling forced him into the position of hiring a digital forensics expert to uncover such privileged data. After all, the mother’s expert could recover privileged data that had been deleted and that the father and his attorney could not access it as a result. The father admitted that he did not make this argument before the trial court and, therefore, the appellate court did not address it substantively.

One option is to obtain an order either appointing a neutral examiner, to work with both parties on privilege claims, or to obtain an order that any data to be produced to the requesting attorney goes first to the producing party so that party can make appropriate objections and their own privilege determinations, just as the producing party would in response to a document request. (Examiners, spend less effort celebrating the engagement and getting the work, and more effort into how to follow this order and protect yourself if put in this position.)

Third, make the record for appeal. The Suhy court specifically noted many instances where the trial court record contains no indication of arguments the father made before the appellate court.

It will be interesting to see if this matter goes before the Alabama Supreme Court.

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