Court Denies Motion to Compel Inspection of Sexual Harassment Plaintiff’s Phone and Computer
In Hespe v. City of Chicago et. al., Case No. 13-7998 (N.D. Ill., Dec. 15, 2016), Plaintiff, a Chicago police officer, sued the city and two other individual police officers for sex discrimination and hostile work environment, alleging that her supervisor, Defendant Breimon, sexually harassed her; that the City failed to take prompt action to protect her; and that Defendant McDermott threatened her because she rebuffed Breimon’s advances. Defendants allege that Plaintiff and Breimon were in a consensual romantic relationship.
Defendants propounded discovery requests upon Plaintiff, who produced photographs, voicemails, emails and text messages she had received from Breimon. Defendants also deposed Plaintiff’s mother, who testified that she had thousands of additional voicemails and text messages, which Plaintiff said she had sent to her mother because she was running out of room on her computer. Defendants subpoenaed Plaintiff’s mother, and she produced all the ESI in her possession, including nearly 6,000 text messages. The discovery deadline was extended so Defendants could depose Plaintiff further. Plaintiff testified that the messages her mother had produced were also on her computer, although not all of them were produced by Plaintiff, and she wasn’t sure whether she had given all or some of them to her counsel. She testified that she did not delete anything other than inappropriate photos sent to her by Breimon. Defense counsel then sought to inspect Plaintiff’s computer and cell phone to search for unproduced communications; Plaintiff’s counsel refused. Defendants filed a Motion to Compel. The magistrate judge denied the motion, reasoning that the forensic inspection of Plaintiff’s hardware was not proportional to the needs of the case and that the motion was not based on any new developments, as the texts had been produced by Plaintiff’s mother three months prior to the deposition and doubt should have arisen then. Defendants objected to the magistrate’s order.
The court determined that the magistrate correctly applied FRCP 26(b)(2)(C)(iii), which requires proportionality to the needs of the case and weighed against the proposed inspection of phone and computer. Plaintiff turned over everything she possessed, and the cost of inspecting her devices as well as the infringement upon her privacy outweighed any benefit to Defendants. Even though Defendants argued that Plaintiff failed in her obligation to search her records and produce the information, the court found they did not demonstrate that any information on her devices would “go to the heart of the case”. The court also found that Defendants could have sought the information sooner, and the magistrate did not clearly err in denying the Motion to Compel.