In Roque v. Swezy, No. 3D23-1836 (Fla. Dist. Ct. App. May 1, 2024), the Third District Court of Appeal of Florida quashed the trial court’s order for a forensic image of Elizabeth Roque’s cellphone (including deleted data), which would then be provided to Roque’s attorney to review and produce all data that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of any party, granting Roque’s request for a writ of certiorari.

Case Discussion and Court Ruling

In this dispute between former domestic partners with claims of breach of fiduciary duty, breach of contract, and tortious interference (which also included Roque’s claims of abuse, assault, defamation and intentional infliction of emotional distress by Swezy), Swezy filed a request for a forensic review of Roque’s cellphone, seeking to have a forensic expert copy the entire contents of Roque’s cellphone, including every photo, video, text, email, note, download, and all data and metadata, including any deleted items.

In his request, Swezy asserted that “upon information and belief … Roque acquired pertinent information on her cellphone regarding the alleged incidents of physical, verbal, and emotional abuse she suffered.”

However, the Florida appellate court noted: “Importantly, although Swezy stated in this request that he ‘believes it is necessary and timely to request forensic review of Roque’s cellphone as to analyze and prevent spoliation and promote efficiency,’ Swezy did not proffer any showing, nor even allege, that Roque had destroyed or deleted, or threatened to destroy or delete, any data or evidence, or that the requested forensic review was the least intrusive means available to obtain the information sought.”

The court also noted: “Additionally, at the time of making this request for forensic review of Roque’s cellphone, the lawsuit was in its infancy. Discovery had just commenced. Swezy filed his initial discovery requests the same day he sought forensic review of the cellphone and thus, no responses to Swezy’s initial discovery requests were due and no witness depositions had been taken or even set. Instead, Swezy alleged that forensic review of Roque’s cellphone was ‘quicker and more efficient than [Roque] having to review and send every piece of forensic evidence that would otherwise be discoverable.’”

Roque objected to the requested forensic copying and review of her entire cellphone, asserting it was a violation of her right to privacy and that Swezy offered no legitimate justification or need for such intrusive discovery. However, after a hearing, the trial court granted Swezy’s motion for forensic review and submitted an order for a forensic image. The order directed Swezy’s attorney to choose a forensic expert (without input from Swezy) to be approved by Roque and her attorney, with the copy of the cellphone’s contents to be reviewed by Roque’s attorney and relevant data produced.

As the Florida appellate court noted: “the trial court did not make any finding (nor did Swezy present any evidence) that Roque had deleted or destroyed, or threatened to delete or destroy, any of the contents of her cellphone, that she had prevented or thwarted discovery in any way, or that there was no less intrusive means to obtain the information sought.”

Considering certiorari relief, the court, stating “there must exist a reasonable expectation of privacy”, added: “The parties do not dispute that Roque has a reasonable expectation of privacy in the contents of her cellphone, and that the trial court’s order granting access, even if such access is limited to Roque’s own attorney (and a forensic expert to image the data and metadata) would constitute an invasion of Roque’s privacy rights… Where, as here, a reasonable expectation of privacy exists for the information, data or items ordered to be disclosed, a trial court is required to balance this right against the need for the discovery, and the burden is on the party seeking disclosure to establish that the invasion of privacy is warranted, and the least intrusive means are utilized to obtain the discovery sought.”

In ruling on the trial court’s order for a forensic image, the Florida appellate court stated: “We reject Swezy’s position (as argued to the trial court) that this proposed forensic review should be permitted as a ‘quicker and more efficient’ means of obtaining evidence. While it may indeed be quicker and more efficient, it fails to satisfy well-established law protecting such information from disclosure without the appropriate showing. Such a contention is reminiscent of arguments advanced to justify warrantless searches otherwise prohibited under the Fourth Amendment.”

In granting the petition for certiorari and quashing the trial court’s order for a forensic image, the Florida appellate court stated: “Given Swezy’s failure to establish that there was any actual or threatened alteration, deletion or destruction of data on Roque’s cellphone, and no less intrusive means to obtain the information sought, the trial court departed from the essential requirements of law in granting Swezy’s motion and directing the forensic imaging of the entire contents of Roque’s cellphone and production of electronically stored information and data as set forth in the trial court’s order.”

So, what do you think? Are you surprised that the trial court issued the order for a forensic image in the first place? Please share any comments you might have or if you’d like to know more about a particular topic.

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