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Court Prohibits ‘Fishing Expeditions’ for Personal Information on Employer-Issued Cell Phone

Posted on August 29th, 2017

Brette Tingle (“Plaintiff”) sued Troy Hebert (“Defendant”) in his individual capacity and his official capacity as the Commissioner in the Louisiana Office of Alcohol and Tobacco Control (“ATC”) in the United States District Court M.D. Louisiana for wrongful termination.  Plaintiff alleges that he was terminated from his employment with ATC by Defendant in retaliation for his participation as a witness in race discrimination charges filed by three of his former co-workers against the ATC with the Equal Employment Opportunity Commission (“EEOC”) and his participation as a witness in the ensuing litigation against the ATC and Defendant, as well as his participation as an expert witness in the matter.

On January 30, 2017, Defendant filed the instant Motion to Compel, seeking to compel Plaintiff to respond to Request for Production Nos. 8, 9, 10, 11 and 12, which request the following documents:  all text messages exchanged between Plaintiff and any former or current ATC employee between January 1, 2012 and the present; all e-mails sent, received or exchanged by or between Plaintiff and any former or current ATC employee between January 1, 2012 and the present from any email accounts maintained or accessed by Plaintiff; any text messages or emails sent, received or exchanged by Plaintiff referring to Defendant or Plaintiff’s employment with the ATC; all text messages sent or received from Plaintiff’s ATC-issued cell phone between January 1, 2012 and February 25, 2015; and any emails, text messages, data, information or documents deleted from Plaintiff’s ATC-issued cell phone before the phone was returned to the ATC in February 2015.

Under the Federal Rules of Civil Procedure, parties may obtain discovery regarding any non-privileged matter relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Defendant asserts that the emails and text messages are relevant to his assertion that Plaintiff was terminated for non-retaliatory reasons, including sending a racially inflammatory text message to another ATC employee. Plaintiff asserts that he did not use his personal cell phone or his personal email addresses for ATC business, so the contents of any such text messages and emails are irrelevant to this matter, not discoverable, not reasonably calculated to lead to the discovery of admissible evidence, and are requested solely to harass Plaintiff and to invade the privacy of Plaintiff and his family.

The Court determined discovery requests for Plaintiff’s emails and text messages are not proportional to the needs of the case. A request for “all text messages” and “all electronic mail (e-mail) messages” that Plaintiff exchanged with any former or current employee of the ATC between January 1, 2012 and the present encompasses a large array of communications, not all of which are likely to be relevant. Emails and text messages exchanged between Plaintiff and current or former ATC employees relating to Defendant or allegations of race discrimination at ATC, if such communications exist, are potentially relevant in this case. For example, Plaintiff is required as part of his retaliation claim to establish a good faith, reasonable belief that he was opposing an employment practice made unlawful by Title VII. If, for example, Plaintiff’s communications with ATC employees showed that he was trying to incite other ATC employees to bring allegations against Defendant without a good faith belief that Defendant was engaging in employment practices that violated Title VII, that information would be relevant. However, any such communications should be limited to the pertinent time period of the period of retaliation alleged in this case.

Defendant also asked Plaintiff to produce written copies of all text messages from his ATC issued cellular phone sent or received from January 1, 2012, through February 25, 2015. He also requested that Plaintiff produce copies of any emails, text messages, data, pictures, information or documents deleted from your ATC issued iPhone/ cellular phone downloaded, printed or copied before returning the phone to the ATC in February 2015. Defendant asserts that the deleted information is relevant to Plaintiff’s invasion of privacy claim because Plaintiff knew the ATC was going to search his ATC-issued cell phone, so the deleted information shows what information Plaintiff considered confidential when he returned the phone to the ATC. Plaintiff maintains that he previously testified that the information deleted from his ATC-issued cell phone includes bank statements, Coast Guard passwords, and text messages between Plaintiff and his family members and friends, and that he did not delete any communications between himself and ATC employees. The Court stated the information requested does not appear to be relevant to any claim or defense in this litigation.

The Court held that Plaintiff shall produce any text messages or emails that Plaintiff exchanged with former or current ATC employees on Plaintiff’s personal cell phone, or any of Plaintiff’s personal email addresses, or any text messages or emails that were deleted from Plaintiff’s ATC-issued cell phone prior to Plaintiff returning the cell phone to the ATC, for the time period between August 22, 2012 and August 18, 2015 that reference Defendant or race discrimination at ATC.

 

ILS–Plaintiff ESI Discovery Experts

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