MENKE v. BROWARD COUNTY SCHOOL BD

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Docket Number

No. 4D05-978.

Attorney(S)

Karen Coolman Amlong of Amlong Amlong, P.A., Fort Lauderdale, for petitioner. Mark A. Emanuele and Marcy E. Abitz of Panza, Maurer Maynard, P.A., Fort Lauderdale, for respondent.

Judges

Martha C. Warner

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Smart Summary

Factual and Procedural Background

David Menke, a high school teacher in Broward County, was suspended in September 2004 pending an administrative complaint filed by the Broward County School Board seeking his termination for alleged misconduct, including exchanging sexually-explicit communications with minor students and making derogatory comments about school personnel. Menke requested a formal hearing, and the complaint was forwarded to the Division of Administrative Hearings. During discovery, the School Board requested inspection of all computers in Menke’s household to examine messages between Menke and students. Menke objected, citing Fifth Amendment protections, privacy rights, and privileged communications. The administrative law judge ordered production of the computers for inspection by the Board’s expert, with limited protections for privileged information and allowing Menke’s expert to be present during the inspection. Menke petitioned for certiorari review of this discovery order.

Legal Issues Presented

Whether the administrative law judge’s order compelling production and inspection of all computers in petitioner’s household violates the petitioner’s Fifth Amendment right against self-incrimination.
Whether the order infringes upon petitioner’s right of privacy and risks disclosure of privileged communications.
Whether the discovery order complies with the applicable procedural rules governing discovery and protection of privileged information.
Whether certiorari review is appropriate for an order compelling discovery of privileged and constitutionally protected information.

Arguments of the Parties

Petitioner’s Arguments

The wholesale inspection of all computers and their contents would violate Menke’s Fifth Amendment right against self-incrimination.
The inspection would infringe on Menke’s and his family’s right of privacy by exposing confidential and irrelevant personal information.
The examination risks disclosure of privileged communications with wife, attorneys, accountants, clergy, and doctors.
The order grants the Board’s expert unfettered access to all data, including privileged communications, with only limited restrictions on disclosure to counsel.

Respondent’s Arguments

The opinion does not contain a detailed account of the respondent’s legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Eight Hundred, Inc. v. Florida Dep't of Revenue, 837 So.2d 574 (Fla. 1st DCA 2003)	Scope of certiorari review of administrative orders analogous to common law writ of certiorari.	Established the standard that petitioner must show a departure from essential requirements of law causing irreparable injury to obtain certiorari relief.
Charlotte County v. Gen. Dev. Utils., Inc., 653 So.2d 1081 (Fla. 1st DCA 1995)	Scope of certiorari review analogous to common law writ of certiorari.	Supported the scope of review mentioned in Eight Hundred, Inc..
Belair v. Drew, 770 So.2d 1164 (Fla. 2000)	Requirement to demonstrate irreparable injury for certiorari relief.	Reinforced the irreparable harm standard for certiorari review.
State Dep't of Transp. v. OHM Remediation Servs. Corp., 772 So.2d 572 (Fla. 1st DCA 2000)	Reviewability of orders compelling discovery over claims of privilege.	Confirmed that discovery orders involving privileged evidence are generally reviewable by certiorari.
Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla. 1987)	Jurisdiction for certiorari review of administrative discovery orders involving privilege and constitutional rights.	Supported the court’s jurisdiction to review the discovery order by certiorari.
Ginsburg v. Pachter, 893 So.2d 586 (Fla. 4th DCA 2004)	Certiorari jurisdiction over discovery orders affecting privileged information.	Further supported jurisdiction to review administrative discovery orders.
Boyle v. Buck, 858 So.2d 391 (Fla. 4th DCA 2003)	Certiorari review of discovery orders involving privilege.	Reinforced jurisdiction and standards for certiorari relief.
Straub v. Matte, 805 So.2d 99 (Fla. 4th DCA 2002)	Certiorari jurisdiction over discovery orders implicating privilege.	Supported the court’s jurisdiction and review standards.
Hill v. State, 846 So.2d 1208 (Fla. 5th DCA 2003)	Reviewability of discovery orders implicating constitutional and privilege issues.	Supported jurisdiction to review discovery orders by certiorari.
Strasser v. Yalamanchi, 669 So.2d 1142 (Fla. 4th DCA 1996)	Limits and safeguards on electronic discovery of computer hard drives to protect privileged and confidential information.	Applied as precedent limiting electronic discovery to narrowly tailored circumstances with protections for privilege; court relied on this to find the inspection order overly broad and harmful.
Etzion v. Etzion, 7 Misc.3d 940, 796 N.Y.S.2d 844 (2005)	Permitting computer access in cases with evidence of intentional data deletion.	Referenced as an example of cases allowing computer inspection only when evidence of data destruction exists.
Renda Marine, Inc. v. U.S., 58 Fed.Cl. 57 (Fed.Cl. 2003)	Permitting computer inspection under circumstances of suspected data destruction.	Used to illustrate limited circumstances permitting intrusive electronic discovery.
In re Amendments to Florida Rules of Civil Procedure, 682 So.2d 105 (Fla. 1996)	Rule 1.280(b)(5) allowing assertion of privilege before disclosure.	Referenced to show the petitioner’s right to assert privilege prior to disclosure was not honored by the discovery order.

Court's Reasoning and Analysis

The court recognized that certiorari review was appropriate because the discovery order compelled production of privileged and constitutionally protected information, which could cause irreparable harm that could not be remedied on appeal. The court analyzed the scope of discovery under Florida law, including section 120.569(2)(f) and the Florida Rules of Civil Procedure, which limit discovery to relevant, non-privileged matters. The court noted that although electronic discovery is permissible, it must be narrowly tailored and controlled to avoid exposing privileged or confidential information, citing Strasser v. Yalamanchi as the leading precedent. The court found no evidence in the record that the petitioner had destroyed evidence or that less intrusive discovery methods had been attempted, such as producing relevant documents rather than entire hard drives. The order granting the Board’s expert unfettered access to all computers, without prior privilege review or specific assertion of constitutional rights, was deemed overly broad and harmful. The court emphasized that discovery requests should conform to procedural rules and that the petitioner’s rights to privacy, privilege, and self-incrimination must be protected. Accordingly, the order was quashed to prevent irreparable harm.

Holding and Implications

The court GRANTED the writ of certiorari and QUASHED the administrative law judge’s discovery order that compelled production and inspection of all computers in petitioner’s household without adequate protections for privilege and constitutional rights.

The decision directly prevents the respondent from obtaining unfettered access to petitioner’s computers and requires discovery to be conducted in accordance with established procedural safeguards protecting privileged and confidential information. The court did not deny the Board’s right to request relevant, non-privileged information but emphasized that discovery must be narrowly tailored and consistent with the Florida Rules of Civil Procedure. No new precedent was created beyond the application of existing principles to the facts of this case.

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Da v. d MENKE, Petitioner,

WARNER, J.

We review a petition for certiorari from the order of an administrative law judge ordering production of all computers in petitioner's household for examination by respondent's expert for the purpose of discovery. Petitioner contends that the production of the computers, including all of their contents, would violate his Fifth Amendment right against self-incrimination and his right of privacy, and would disclose privileged communications in the manner in which this examination was to be made. We agree and grant the writ.

Petitioner Menke is a high school teacher in Broward County. He was suspended from his position for "misconduct in office" in September 2004 pending the determination of an administrative complaint filed by the Broward County School Board seeking his termination. The misconduct included allegations that he had exchanged sexually-explicit e-mails with minor students and also made derogatory comments regarding school personnel and operations with students. The respondent School Board was advised of some of the e-mails, which Menke states are not actually e-mails but instant messages.

Menke requested a formal hearing, and the complaint was forwarded to the Division of Administrative Hearings. In the proceedings, the Board served a request on Menke for inspection of all of the computers in his household, which consists of Menke, his wife, and his children. The Board wanted its retained computer expert to inspect all such computers in his laboratory for messages between Menke and any students. It requested various categories of information which it sought to review.

Menke objected to the inspection on the grounds that such a wholesale inspection of the hard drives of his computers would violate his Fifth Amendment right and his right of privacy, and may reveal privileged communications with his wife, attorneys, accountants, clergy, or doctors.

After a hearing on the issue, the administrative law judge granted the motion to compel production of the computers for inspection. The order allowed the expert to inspect the hard drives of all the home computers to discover whether they contained various categories of information requested. The judge sought to protect Menke's rights by ordering the expert not to retain, provide, or discuss with counsel for the Board the existence of any communications which might be deemed privileged. It also allowed for Menke to have his own expert present when the inspection took place. If Menke's expert believed a privileged communication was discovered, then the document could be marked and the ALJ could conduct an in camera inspection of the document before it was delivered to the Board. Menke brings this petition to review this order.

In petitions for review from administrative orders, the standard of review is essentially the same as that from an order from a civil proceeding. As the first district recently pronounced in Eight Hundred, Inc. v. Florida Dep't of Revenue, 837 So.2d 574, 575 (Fla. 1st DCA 2003):

[O]ur scope of review in such a matter "is analogous to and no broader than the right of review by common law writ of certiorari." Charlotte County v. Gen. Dev. Utils., Inc., 653 So.2d 1081, 1084 (Fla. 1st DCA 1995). To be entitled to relief from a non-final order pursuant to a petition seeking a common law writ of certiorari, "the petitioner must demonstrate that the trial court departed from the essential requirements of the law, thereby causing irreparable injury which cannot be adequately remedied on appeal following final judgment." Belair v. Drew, 770 So.2d 1164, 1166 (Fla. 2000). "An order compelling discovery over a claim that the evidence is privileged is generally reviewable under section 120.68(1), because the harm cannot be remedied on review of the final order." State Dep't of Transp. v. OHM Remediation Servs. Corp., 772 So.2d 572, 573 (Fla. 1st DCA 2000).

Because the order of inspection involves an order compelling discovery of privileged information as well as constitutionally protected information, we have jurisdiction to review by way of certiorari. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla. 1987); Ginsburg v. Pachter, 893 So.2d 586 (Fla. 4th DCA 2004); Boyle v. Buck, 858 So.2d 391 (Fla. 4th DCA 2003); Straub v. Matte, 805 So.2d 99 (Fla. 4th DCA 2002); Hill v. State, 846 So.2d 1208 (Fla. 5th DCA 2003).

As Menke states in his petition, this order "gives an agent of the Board carte blanche authorization to examine the hard drives it will duplicate from the computers Menke has been ordered to produce, combing through every byte, every word, every sentence, every data fragment, and every document, including those that are privileged or that may be part of privileged communications, looking for `any data' that may evidence communication between Menke and his accusers." The only admonition to the Board's expert is that if he finds such communication, he cannot discuss it with counsel. However, those communications are still revealed to a paid representative of the opposing party, as will be everything else on the computer, substantially invading the privacy of Menke and his family members.

Today, instead of filing cabinets filled with paper documents, computers store bytes of information in an "electronic filing cabinet." Information from that cabinet can be extracted, just as one would look in the filing cabinet for the correct file containing the information being sought. In fact, even more information can be extracted, such as what internet sites an individual might access as well as the time spent in internet chat rooms. In civil litigation, we have never heard of a discovery request which would simply ask a party litigant to produce its business or personal filing cabinets for inspection by its adversary to see if they contain any information useful to the litigation. Requests for production ask the party to produce copies of the relevant information in those filing cabinets for the adversary.

Menke contends that the respondent's representative's wholesale access to his personal computer will expose confidential communications and matters entirely extraneous to the present litigation, such as banking records. Additionally, privileged communications, such as those between Menke and his attorney concerning the very issues in the underlying proceeding, may be exposed. Furthermore, Menke contends that his privacy is invaded by such an inspection, and his Fifth Amendment right may also be implicated by such an intrusive review by the opposing expert.

Preliminarily, the authority of the administrative law judge in discovery matters is prescribed by section 120.569(2)(f), Florida Statutes, providing in part:

(f) The presiding officer has the power to swear witnesses and take their testimony under oath, to issue subpoenas, and to effect discovery on the written request of any party by any means available to the courts and in the manner provided in the Florida Rules of Civil Procedure, including the imposition of sanctions, except contempt.

(emphasis supplied).

In accordance with the Florida Rules of Civil Procedure, "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action. . . ." Fla.R.Civ.P. 1.280(b)(1) (emphasis supplied). Although the Florida Rules of Civil Procedure have not been amended specifically to accommodate discovery of electronic data, rule 1.350(a) provides that:

Any party may request any other party (1) to produce and permit the party making the request, or someone acting in the requesting party's behalf, to inspect and copy any designated documents, including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the party to whom the request is directed through detection devices into reasonably usable form, that constitute or contain matters within the scope of rule 1.280(b) and that are in the possession, custody, or control of the party to whom the request is directed; (2) to inspect and copy, test, or sample any tangible things that constitute or contain matters within the scope of rule 1.280(b) and that are in the possession, custody, or control of the party to whom the request is directed; or (3) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation on it within the scope of rule 1.280(b).

In the only Florida appellate court opinion discussing electronic discovery, we held that rule 1.350(a)(3) was broad enough to encompass requests to examine a computer hard drive but only in limited and strictly controlled circumstances, acknowledging that unlimited access to anything on the computer would constitute irreparable harm, because it would expose confidential, privileged information to the opposing party. See Strasser v. Yalamanchi, 669 So.2d 1142 (Fla. 4th DCA 1996). In that case, involving a dispute between doctors, the defendant asserted that he had purged data that plaintiff was attempting to discover. According to the plaintiff, the defendant had a history of thwarting discovery. We said,

If plaintiff can present evidence to demonstrate the likelihood of retrieving purged information, and if the trial court finds that there is no other less intrusive manner to obtain the information, then the computer search might be appropriate. In such an event, the order must define parameters of time and scope, and must place sufficient access restrictions to prevent compromising patient confidentiality and to prevent harm to defendant's computer and data bases. One alternative might be for defendant's representative to physically access the computer system in the presence of plaintiff's representative under an agreed-upon set of procedures to test plaintiff's theory that it is possible to retrieve this purged data.

Id. at 1145 (emphasis supplied). Thus, intrusive searching of the entire computer by an opposing party should not be the first means of obtaining the relevant information.

Where a need for electronically stored information is demanded, such searching should first be done by defendant so as to protect confidential information, unless, of course, there is evidence of data destruction designed to prevent the discovery of relevant evidence in the particular case. Id. In fact, in the few cases we have found across the country permitting access to another party's computer, all have been in situations where evidence of intentional deletion of data was present. See, e.g., Etzion v. Etzion, 7 Misc.3d 940, 796 N.Y.S.2d 844 (2005); Renda Marine, Inc. v. U.S., 58 Fed.Cl. 57 (Fed.Cl. 2003).

Here, there is no evidence of any destruction of evidence or thwarting of discovery. It does not appear from the record provided that any other method of discovery of relevant information has been requested, even a request to provide hard copies of all relevant documents. There is also no proof that there is no less intrusive method of obtaining the information.

The order permitting the respondent's expert to examine the computers of petitioner does not allow the petitioner to assert privilege as to information on the computer in advance of its disclosure to the respondent's expert. Thus, it prevents petitioner from exercising his right to assert privilege as permitted under Florida Rule of Civil Procedure 1.280(b)(5), a rule revision adopted after our opinion in Strasser. See In re Amendments to Florida Rules of Civil Procedure, 682 So.2d 105, 115 (Fla. 1996). It also prevents petitioner from making a specific assertion of his Fifth Amendment right against self-incrimination or of his right to privacy or that of others within the household.

Because the order of the administrative law judge allowed the respondent's expert access to literally everything on the petitioner's computers, it did not protect against disclosure of confidential and privileged information. It therefore caused irreparable harm, and we grant the writ and quash the discovery order under review. We do not deny the Board the right to request that the petitioner produce relevant, non-privileged, information; we simply deny it unfettered access to the petitioner's computers in the first instance. Requests should conform to discovery methods and manners provided within the Rules of Civil Procedure.

STEVENSON, C.J., and POLEN, J., concur.