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Dialing-In On Plaintiff’s Opposition Arguments, Court Denies Defendant’s Motion to Compel Inspection of Plaintiff’s Cell Phone

Posted on December 13th, 2017

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Follow our blog for future updates on eDiscovery topicsIn Tillman v. Ally Financial Inc., No. 2:16-cv-313-FtM-99CM, Dist. Court, (M.D. Florida, 2017), the Court considered Defendant’s motion to compel inspection of Plaintiff’s cell phone.

On April 28, 2016, Plaintiff initiated this lawsuit against Defendant, alleging that Defendant violated the Telephone Consumer Protection Act (“TCPA”). Plaintiff claimed that in or around December 2015, Defendant called him numerous times to reach an individual named Phillip Everett. Plaintiff notified Defendant that he was not Everett, and requested that Defendant stop making calls to him. Plaintiff stated that he was not the person whom Defendant attempted to reach, and did not provide his consent to receive calls from Defendant for any purpose. Despite providing this information to Defendant in December 2015, Defendant continued to make twenty-two phone calls to Plaintiff between January 2016 through April 2016.

Plaintiff then filed this action alleging that Defendant violated the TCPA. Thereafter, a discovery dispute arose which could not be resolved between the parties, and Defendant filed a motion to compel Plaintiff to produce his cell phone for inspection by Defendant.

Plaintiff opposed the motion, stating his objections to the the inspection request because it:  (1)  sought discovery of privileged communications; (2) sought discovery of matters that were not relevant to any party’s claim or defense, (3) sought discovery that was not proportional to the needs of the case, (4) imposed an undue burden on Plaintiff by unnecessarily invading his privacy; and (5) would deprive him of his phone for an unknown number of days.

Defendant countered by arguing that its examination of Plaintiff’s cell phone was necessary to discover how many calls Plaintiff received from Defendant on his cell phone. Defendant also argued that discovery regarding the cell phone’s text message history, call log, emails and time-stamped photos would likely provide other relevant evidence.

The Court did not find the circumstances presented here justified the burden and the cost of ordering an inspection of the cell phone. In denying the motion, the Court also took into consideration Defendant’s delay in bringing the motion and in the meet and confer process.  The Court made negative comment about Defendant’s counsel having received Plaintiff’s objections to Defendant’s request for production in January 2017, but yet waiting eight months before even beginning to confer with Plaintiff’s counsel regarding the objections.  The Court also made critical note of  Defendant’s counsel having filed the motion to compel on the discovery cutoff date, without providing any explanation for the delay. For these reasons, the Court denied the Defendant’s motion.

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