Inviting Scrutiny: “Obstructionist” Conduct Leads to District Court Ordering Forensic Examination of Defendant’s Cell Phone

Courts have been authorizing forensic experts to conduct examinations of electronic devices for decades. However, we have noticed a recent uptick of district courts ordering the appointment of an independent forensic expert to create images of and forensically examine cell phones to ensure the preservation and production of relevant electronic data particularly where the party in control of the evidence has been less than forthcoming in their discovery obligations. The District Court for the Southern District of Florida is one of the latest courts to order such a remedy, granting plaintiff’s motion to compel a forensic examination and ordering that an independent expert “mirror image and/or acquire all data present on Defendant’s cell phone.”

In Measured Wealth Private Client Group v. Foster, the discovery issue was whether plaintiff should be permitted to conduct a forensic examination of defendant’s phone to recover certain text messages and iMessages from 2019. Defendant argued that “the temporal scope is too broad and would result in the production of irrelevant text messages and iMessages, that the discovery sought could be obtained from other individuals, and that plaintiff’s request for a forensic examination of her mobile phone for such a long period of time is a mere fishing expedition.” Defendant was also concerned that the examination would uncover personal and private information unrelated to plaintiff’s claims.

After review of the parties’ positions and in an effort to “put an end to this discovery dispute,” the magistrate judge found that “a forensic examination, with necessary safeguards to protect Defendant’s privacy” was the best solution. First, the Court found that, despite defendant’s arguments to the contrary, plaintiff “properly propounded written discovery requests seeking certain text messages and iMessages” from 2019. Second, the Court found that text messages and iMessages responsive to plaintiff’s discovery requests from 2019 were “relevant and proportional to the claims and defenses in this case,” in accordance with Fed. R. Civ. P. 26(b)(1). Third, the Court found that defendant still possessed and utilized the cell phone she used in 2019.

Most notably, the Court found that defendant appeared “to have been obstructionist with regard to her production of text messages and iMessages during the discovery process.” According to the Court, it seemed that defendant “agreed to produce certain text messages and iMessages at one time and then failed to do so.” At that point, defendant had not produced any of the text messages or iMessages sought by plaintiff. The Court explained that it “want[ed] to ensure that all relevant and proportional discovery [was] produced in this case,” and reasoned, “[a]ll parties and their counsel in this case, including Defendant, must ensure that all relevant and proportional e-discovery sought has been appropriately preserved, searched for, and produced.” Citing the seminal DR Distributors case the Court warned, “[s]erious sanctions can issue if e-discovery preservation, search, or production is inadequate.”

Lastly, the Court found that, in light of the sealed filings, plaintiff was not engaging in a “improper fishing expedition,” but rather, plaintiff made legitimate discovery requests based on the discovery already produced. The Court concluded that “[b]ecause Plaintiff has made a strong showing that additional relevant text messages and iMessages may be recovered from Defendant’s phone, forensic examination is appropriate in this case.” Plaintiff made a sufficient showing of need for the messages, and the Court was concerned that defendant’s search of her phone was inadequate. Ultimately the Court ordered a straightforward protocol that would allow for the extraction of relevant non-privileged data from the phone, while protecting defendant’s non-relevant and privileged information.

The Measured Wealth opinion is significant because it exemplifies district courts’ increasing willingness to order forensic examination of cell phones to ensure preservation and production of relevant text messages and iMessages, especially where there has been a lack of cooperation in discovery from the producing party. The takeaway for producing parties is that obstructionist conduct may lead the court to an even more invasive and less desirable remedy of allowing forensic examination of data sources, versus simply compelling the recalcitrant party to comply on its own terms. Thus, attorneys and clients must continue to be aware of this remedy, and, as always, avoid any “obstructionist” conduct that may end up supporting a future request for forensic examination of personal devices, or ultimately, the imposition of serious spoliation sanctions.

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