In Johns v. Chemtech Services, No. 20 C 7299 (N.D. Ill Aug. 27, 2021), Illinois Magistrate Judge Gabriel A. Fuentes denied the defendant’s request for a Court-compelled forensic examination of the plaintiff’s cell phone, stating that he “does not see a forensic examination of plaintiff’s cell phone as proportional to the needs of the case under Rule 26(b)(1)”.
In this case over alleged race-based termination of the plaintiff by the defendant, the defendant served a Rule 34 request for production on the plaintiff of “all cellular telephones owned and/or associated with Plaintiff that he used working during his shifts for Chemtech from July 1, 2018 until present for purposes of inspection and preservation.”
The defendant claimed that the plaintiff made the forensic examination necessary by failing to produce certain discovery, and that the information in the phone(s) was discoverable because it would help the defendant prove that its termination of the plaintiff was not discriminatory, by showing that the plaintiff was disciplined previously for spending too much time on his cell phone during work hours, and that the plaintiff made allegedly inappropriate social media postings that arguably might make his termination more appropriate.
The plaintiff responded that the defendant didn’t assert either of those rationales for the termination, so the matters to be probed in the forensic examination were outside the heart of the case. The plaintiff also expressed concern about the invasive nature of the proposed forensic examination and argued that his conduct in discovery in this case didn’t amount to the type of extraordinary circumstances in which courts have compelled forensic examinations of personal cellular devices in civil litigation.
Judge Fuentes began with a look at Belcastro v. United Air Lines, Inc., which was cited by the defendant in support of its request, stating: “In Belcastro, the court allowed a forensic examination of a plaintiff’s cell phone over a narrow issue of whether and how a particular highly relevant social media posting had been made (as reflected in a text message), and plaintiff’s deposition testimony and representations of counsel conflicted over whether the text message still could be produced…But the record in Belcastro also included a highly concerning inconsistency, in which the plaintiff testified that he had traded in his device in November 2016 without preserving data, before the suit was filed – but the evidence showed that he traded it in a year later, six months after filing the lawsuit…The court ultimately concluded that plaintiff lacked the expertise to find and produce the relevant ESI, as data had been transferred from his old device when he traded it in for the new one; that data could then be searched competently, and the forensic examination was justified.”
Judge Fuentes also referenced two Northern District of Illinois cases (Hespe and Motorola Solutions) in which the forensic examination was denied, referencing this quote from the latter case: “Inspection or testing of certain types of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy. The addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.”
In denying the defendant’s request, Judge Fuentes stated: “Here, the Court would review the requested forensic examination as more likely to be proportional to the needs of this case if the record showed more clearly that Johns has obfuscated or obstructed the discovery, of if the discovery he supposedly hid were more central to the key issues. But neither is the case. First, Chemtech admits that Johns produced text messages but not completely, in that he has not produced text messages from the relevant time period (when Chemtech said he was using his cell phone during work hours) and has not produced video or photo attachments, “complete messages” and “complete data such as phone numbers of senders/recipients.”…Second, Chemtech complains that he has not produced social media posts, when posts already available to Chemtech show Johns posting derogatory material about Chemtech, including a dead-looking, alien-like character and a wrecked-looking building plaintiff and another person associated with Chemtech…The Court is not as inclined to see what Johns has not produced (i.e., “complete” messages or phone data) as so central to the case that exceptional circumstances warranting a full forensic examination. Chemtech has a slightly better argument as to photos and video attachments, in that perhaps Chemtech would find more photos of dead aliens under captions referencing the company, or other material that could well be relevant, but the Court still sees the circumstances as less than exceptional under the case law.”
So, what do you think? Do you agree that the plaintiff’s actions did not qualify as obstructing discovery? Please share any comments you might have or if you’d like to know more about a particular topic.
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