In Brown Jordan International, Inc. et. al. v. Carmicle et. al., Consolidated Case No. 15-00037 (W.D.K.Y. Oct. 19, 2015), Plaintiffs sued Defendant for violations of the Computer Fraud and Abuse Act and the Stored Communications Act as well as for breach of contract and breach of fiduciary duty.
During discovery, Defendant produced his electronic devices and electronic storage for forensic examination. During that examination, Plaintiffs discovered information that led them to believe that Defendant’s wife’s iPhone may contain additional responsive material. Accordingly, Plaintiffs subpoenaed Defendant’s wife’s iPhone for forensic exam. She objected and refused; Plaintiffs filed a Motion to Compel.
The court granted the Motion. Pursuant to FRCP 45’s dictates regarding a party’s ability to subpoena relevant materials, the court observed that once Plaintiffs’ forensic examination revealed that the iPhone might contain potentially relevant material, Defendant’s wife had the burden to show that any potential harm to her in producing the material outweighed its relevance. Defendant’s wife argued that the phone did not contain any relevant information at all but the court observed that Plaintiffs could not substantiate the wife’s claim without first examining the phone. The court ordered Defendant’s wife to produce the phone for an overnight examination, and gave her time to first review the material for any privileged material.