In a Case of “Déjà vu All Over Again”, Court Orders Mobile Phone Forensic Examination: eDiscovery Case Law

In Measured Wealth Private Client Grp. v. Foster, et al., No.: 20-cv-80148-SINGHAL/MATTHEWMAN (S.D. Fla. Mar. 31, 2021), Florida Magistrate Judge William Matthewman, after having ordered a mobile phone forensic examination for a different individual defendant two months earlier, granted the plaintiff’s motion to compel forensic examination of defendant Lee Anne Foster’s mobile phone, rejecting the defendant’s argument that the lengthy time period requested was a “mere fishing expedition”.

Case Background

In this case involving misappropriation of trade secrets claims against the defendants, who left the plaintiff’s employment and joined a direct competitor of the plaintiff, the plaintiff filed a Motion to Compel Forensic Examination of Defendant Lee Anne Foster’s Mobile Phone, which was referred to the District Judge, Raag Singhal.  After the defendant filed a response and the plaintiff filed a reply, the Court entered an Interim Order requiring the parties to further confer and file a Joint Notice, which they did, but were unable to reach an agreement.

In response to the motion, the defendant asserted that the temporal scope (of January 1, 2019 through December 31, 2019) was too broad and would result in the production of irrelevant text messages and iMessages, that the discovery sought could be obtained from other individuals, and that Plaintiff’s request for a forensic examination of her mobile phone for such a long time period was a “mere fishing expedition”. The defendant also expressed concern that the examination could uncover personal and private information unrelated to Plaintiff’s claims.

Judge’s Ruling

Judge Matthewman, after having “carefully considered the relevant law, Plaintiff’s Motion…, Defendant’s response…, Plaintiff’s reply…, the sealed materials filed by Plaintiff…, and the arguments of counsel for both parties at the hearing, as well the entire docket in this case”, ruled as follows:

“First, despite Defendant’s argument to the contrary, Plaintiff has properly propounded written discovery requests seeking certain text messages and iMessages from the time period of January 1, 2019 through December 31, 2019…Additionally, the Court provided the parties with the opportunity to confer about the most recent requests for production propounded by Plaintiff and waited until the responses to the most recent requests for production were due before issuing this Order.

Second, text messages and iMessages responsive to Plaintiff’s discovery requests from the period of January 1, 2019 through December 31, 2019, are relevant and proportional to the claims and defenses in this case, per Fed.R.Civ.P. 26(b)(1).

Third, Defendant currently possesses the same phone she possessed and utilized back in 2019 during the relevant time period. The Court wants to put an end to this discovery dispute and finds that a forensic examination, with necessary safeguards to protect Defendant’s privacy, is the best way to accomplish that task.

Fourth, Defendant appears to have been obstructionist with regard to her production of text messages and iMessages during the discovery process. Based on the facts and arguments presented to the Court, it seems that Defendant agreed to produce certain text messages and iMessages at one time and then failed to do so. At this point, she has produced none of the text messages or iMessages sought by Plaintiff. The Court wants to ensure that all relevant and proportional discovery is produced in this case. All parties and their counsel in this case, including Defendant, must ensure that all relevant and proportional e-discovery sought has been appropriately preserved, searched for, and produced. Serious sanctions can issue if e-discovery preservation, search, or production is inadequate. See, e.g., DR Distributors, LLC, No. 12 CV 50324, 2021 WL 185082, at (N.D. Ill. Jan. 19, 2021).

Fifth, in light of the sealed filings, the Court finds that Plaintiff is not engaging in an improper fishing expedition in seeking the text messages and iMessages. Rather, Plaintiff has made a legitimate discovery request based on the production that Defendant has completed to date.”

In granting the motion to compel mobile phone forensic examination, Judge Matthewman also stated: “The Court wants to ensure complete production of all relevant requested documents in this case while concomitantly protecting Defendant’s privacy as to the personal matters on her phone. Because Plaintiff has made a strong showing that additional relevant text messages and iMessages may be recovered from Defendant’s phone, forensic examination is appropriate in this case… Plaintiff has made a sufficient showing of need for the messages…Further, the Court is concerned that Defendant’s search of her phone was inadequate. The Court will utilize the protocols from the Wynmoor case, modified as necessary, in order to ensure protection of Defendant’s privacy.”

So, what do you think?  Are you surprised that the Court granted the motion to compel mobile phone forensic examination?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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