In Handley v. Werner Enterprises, Inc., et al., No.: 7:20-CV-00235 (WLS) (M.D. Ga. Sept. 30, 2021), Georgia District Judge Willie L. Sands granted the defendants’ Motion to Compel Plaintiff’s Cellular Phone Information, specifically the correct PIN to unlock her mobile device, rejecting the plaintiff’s argument that the motion to compel was untimely, ruling that he “cannot find that Defendants failed to attempt to confer in good faith” and that the plaintiff’s previous attempts to provide the correct PIN illustrates “that the motion to compel has merit.”
In this case where the plaintiff sought damages related to injuries suffered in an automobile accident, the plaintiff produced her severely damaged phone in discovery that it was so damaged it had to be reconstructed. After it was rebuilt, the defendants were informed that a PIN was required to access the phone, so they requested the PIN from Plaintiff’s counsel in at least two emails. Plaintiff’s counsel provided three possible PINs, but none of them worked which meant that the defendants were unable to access the phone’s contents. As a result, the defendants filed the motion to compel the plaintiff to provide the correct PIN to unlock her phone so that they could discover “information central to the issues of this case – what caused the subject collision” where the plaintiff rear-ended a defendant’s tractor-trailer (allegedly without pressing her brakes).
The plaintiff argued that the motion to compel should be denied because it was untimely and because the defendants failed to email the Courtroom Deputy for a conference prior to filing the motion. Her sole argument against the merits of the motion to compel was that she may not recall her PIN and argued that “a party cannot produce documents it does not have”.
With regard to the plaintiff’s argument that the defendant’s motion was untimely, Judge Sands stated: “The initial Discovery and Scheduling Order provides that ‘all motions made under Rule 37 must be filed within twenty-one days of the date on which the response(s) was due, or twenty-one days of receipt of an allegedly inadequate response or other alleged violation of Rule 37, and no later than twenty-one days after the close of discovery, whichever first occurs.’…This is known as the Court’s 21/21/21 Rule, and it is strictly enforced. Defendants explain that they first learned that the PINs Plaintiff provided did not work on August 3, 2021, the same day that they emailed Plaintiff’s counsel requesting the correct PIN…Defendants did not receive a response to their email and filed the pending motion to compel within twenty-one days of the date they learned the PINS did not work. Thus, the motion to compel is not untimely.”
Judge Sands also noted that while “[t]he initial Discovery and Scheduling Order also noted that the Parties proposed that ‘[s]hould a party determine that there is a basis to file a motion to compel, a request for a conference must be made by e-mail to the Courtroom Deputy’”, this Court “did not require that the Parties contact the Courtroom Deputy prior to filing a motion to compel, although Defendants should have honored their agreement with Plaintiff to do so.” Judge Sands also stated this:
“Here, the record clearly indicates as follows: Defendants need a PIN to access Plaintiff’s phone for their defense in this case, Defendants cannot get the PIN elsewhere, Defendants timely sought the phone and PIN during the discovery period, the day that Defendants learned the PINs did not work, they requested the correct PIN from Plaintiff’s counsel but received no response, and Defendants filed the instant motion twenty days after their most recent request for the PIN, in compliance with the Court’s strictly-enforced 21/21/21 Rule. Furthermore, the information sought will impose minimal burden and no harm to Plaintiff, especially where Defendants have withdrawn their request for attorneys’ fees for filing this motion…Under these circumstances, good cause exists to grant the motion notwithstanding Defendants’ failure to schedule a conference with the Court in advance.”
With regard to whether the defendant should have made more of a good faith effort to confer beforehand, Judge Sands stated: “There is no bright-line rule applicable in this Court regarding to what extent a movant must attempt to confer before filing a motion to compel… Furthermore, Defendants did send more than a single email; they sent several emails requesting a PIN in the months prior to filing the instant motion, including their last email to which no response was provided whatsoever, and they have still not received a working PIN…Although it is preferable for Parties to make additional efforts to attempt to confer, under these circumstances, the Court cannot find that Defendants failed to attempt to confer in good faith.”
Finally, in granting the defendants’ motion, Judge Sands stated: “it is clear that Plaintiff’s counsel is attempting to provide the information requested in the instant motion to compel, which is further indication that the motion to compel has merit. Applying Rules 26 and 37 to this case, the discovery sought is clearly relevant and proportional to the needs of this case, considering the relevant factors, and it should be produced if known.”
So, what do you think? Will this make any difference in getting to plaintiff to provide a valid PIN? Please share any comments you might have or if you’d like to know more about a particular topic.
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