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DISCOVERY - FILES ON NOTEBOOK COMPUTER
© 1997 National Legal Research Group, Inc.
NEW YORK: Byrne v. Byrne, ___ Misc. 2d ___, 650 N.Y.S.2d 499 (Sup. Ct. 1996).
Files on a notebook computer which the husband's employer permitted him to use at home were discoverable by the wife, subject to the attorney-client privilege.
Many individuals use personal finance software such as "Quicken" to track and analyze their investments and expenses. A computer utilized for this purpose likely contains a wealth of financial information that could be invaluable in equitable distribution. Byrne v. Byrne holds that financial information stored on the hard drive of a personal computer used by a spouse at home is discoverable subject to the attorney-client privilege even if the computer belongs to the spouse's employer.
The discovery dispute in Byrne centered on a notebook computer which belonged to the husband's employer, Citibank. Believing that the computer contained information about the finances of the parties or the husband, the wife removed it from the parties' residence and gave it to her attorney. The wife's attorney sought to download the files on the computer's hard drive.
The husband, contending that the computer was not subject to discovery, claimed that there was nothing of use to the wife in the computer and that it was improper for the wife to take the computer. Citibank jumped into the fracas, asserting that the notebook computer should be returned to it because the computer belonged to it and not to the husband.
The court prefaced its analysis by noting that it was presently in control of the computer. It was undisputed, the court observed, that the computer was used and controlled by the husband and that his employer did not limit the use of the computer. In fact, the husband permitted his children to use the computer for their homework, the court pointed out. "Thus, it cannot be said that the [wife] acted illegally by removing the `family' computer from the marital residence and presenting it to her attorney." 650 N.Y.S.2d at 500.
The computer was akin to a file cabinet left in the marital residence, the court said. The wife clearly could have access to a file cabinet, and in the same fashion she should have access to the contents of the computer to determine if it contained discoverable material. The wife did nothing wrong by obtaining physical custody of the notebook computer, the court decided.
Accordingly, the court ordered the parties to appear with their computer experts at the courthouse for the purpose of downloading all the files contained in the computer. This process would be very similar to the commonly undertaken inventory of a safe deposit box, the court noted. Without directly ordering the husband to furnish his passwords, the court noted that "if [the husband] furnishes his passwords the process will be expedited." Id.
The downloaded material must be deposited with the court, and a list must be generated as to the nature of the documents and given to both counsel, the court ordered. The husband's counsel may review copies of the downloaded documents to identify any attorney-client privileged materials, and could make a claim of privilege by filing a motion for a protective order within 10 days after completion of the downloading process. Otherwise, the husband's counsel would be required to turn over all material to the wife's counsel. After completion of downloading, the computer itself would be returned to Citibank, the court directed.
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