May 7, 2020

Request For Inspection Of Cellphone Denied Where Request Was Not Proportional And Less Intrusive Production Of Text Messages Was Sufficient

by Alan Brooks

In Santana v. MKA2 Enterprises, Inc., No. 18-2094-DDC-TJJ (D. Kan. Jan. 8, 2019), a Magistrate Judge denied Defendant’s Motion to Compel regarding Defendant’s request for Plaintiff to produce all of his cellphones for inspection and copying while also ordering Plaintiff to “produce complete copies of all responsive text messages to the extent they have not already been produced.”

Stemming from an employment discrimination case, the parties failed to resolve their discovery dispute as to Defendant’s Request for Production No. 21, which stated:

Produce all cellular phones used by [Plaintiff] from the date your employment with Defendant started to the present for purposes of inspection and copying.”

Plaintiff objected to this request on the grounds that “this request seeks irrelevant information and is not proportional to the needs of this case. The request is unduly burdensome and invasive in light of the nature of the case-Defendant has shown no need for the production of Plaintiff’s cell phone.”

Separate from the motion to compel at-issue, Defendant also requested that Plaintiff “produce a full and complete copy of all text messages between [Plaintiff] and Defendant and between [Plaintiff] and current or former employees of Defendant.” Plaintiff objected that the request “seeks irrelevant information.”

In ruling on the motion, the Court stated that “Defendant’s RFP No. 21 is broad in scope, requesting production of all Plaintiff’s cell phones for inspection and copying, without any limitation on the data ultimately to be produced from the copy or image of the phone(s)” and further stated that “Defendant sets out no protocol or process through which the data it deems responsive would be culled from the copy or image of the phone(s) and any unresponsive and/or privileged data removed or protected.”

The Court then referenced Advisory Committee Notes to Fed. R. Civ. P. 34(a):[8], which stated (in part): “Inspection or testing of certain types of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy… Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.”

The Court also noted that “Defendant cites no cases involving the imaging of a cell phone and only one case in which a computer inspection and imaging was ordered” and (unlike that case), Plaintiff hadn’t shown any history of providing incomplete and inconsistent responses to production requests.  As a result, the Court held:

“…that Defendant’s RFP No. 21 is overly broad, unduly burdensome and not proportional to the needs and issues of this case. Defendant’s separate request for the narrowed scope of text messages also illustrates that Defendant has the ability to obtain relevant cell phone data through less invasive means. In accordance with Rule 34(a), the Court must guard against the undue intrusiveness that would result from the requested inspection and copying of Plaintiff’s cell phone(s). The Court will therefore sustain Plaintiff’s objections to RFP No. 21.”

The Court concluded its holding by directing Plaintiff to “supplement his response to Request for Production No. 21 and produce complete copies of all responsive text messages to the extent they have not already been produced.”