In Cornwell v. Northern Ohio Surgical Center, ltd., et al., 2009 Ohio 6975 (Ohio App. Dec. 31, 2009), the Ohio Appellate Court affirmed the trial court's ruling permitting plaintiff's experts to make forensic copies of defendants' hard drives.

This wrongful death lawsuit was brought by the administrator of Plaintiff's estate to recover damages related to her death following surgery while in defendants' care.  In a series of depositions, defendants' employees gave conflicting testimony regarding the existence of certain notations in plaintiff's medical file, including preexisting conditions that could have adversely impacted and complicated her surgery. Based on these depositions, plaintiff amended her complaint alleging fraud and common law spoliation of evidence.  Plaintiff also filed an expedited motion for discovery asking the court to allow a computer expert to create a mirror image of certain hard drives.  The defendants opposed the motion arguing that their hard drives contained privileged health information of "hundreds other patients" dating back to 2006. They further maintained that plaintiff's method for the search of the hard drive was prohibited by the Health Insurance Portability and Accountability Act ("HIPPA"). 

The trial court granted plaintiff's motion, ordering defendants to allow plaintiff and her forensic expert to examine defendants' hard drives upon which three documents in question were created.  As part of the court's order, plaintiff's expert was permitted to: (1) "make bit-by-bit 'mirror images' of certain hard drives; (2) mount the images on a computer, index the images and perform a search of the images using standard forensic computer software; (3) use a limited number of terms as determined by the judge that related to plaintiff and her condition in searching the data files and unallocated space of the designated hard drives; (4) provide defendants with an initial report and a computer disk containing a list of the items that had the search terms in them; and (5) search the event logs and registry files of the drives and deliver the list of results to defense counsel.

The trial judge further directed defense counsel to review the initial report, event logs, and registry files in order to determine what on those lists defense counsel deemed privileged and to create a "privilege log."  If the plaintiff wanted to challenge any of the items deemed privileged by defendants, the judge would then rule on the issue of privilege.  Defendants were allowed to have their own expert present the entire time, and could, at their own expense, make their own mirror images of the pertinent drives. Once the entire process was complete, the parties were ordered to deliver the mirror images, under seal, to the trial court.

On appeal, the appellate court affirmed noting the trial court's order limited plaintiff's expert to reviewing reports based on search results and not the actual electronic documents themselves.  Rather, the reports and data would then be provided to defendants for review.  The appellate court agreed that forensic images were the exception and not the rule, but ruled that such inspections were authorized where, as here, several discrepancies raise an inference of improper conduct and there was a direct relationship between the hard drives and the spoliation claims made in the case.