Plaintiff seeks to compel a forensic examination of the cell phones of nine employees of EDI: (1) Brad Gabriel; (2) Ron Gabriel; (3) Tim Murrey; (4) Kelly Rauh; (5) Jack Damm; (6) Ross Papka; (7) Rick Cooley; (8) Cyndi Harris; and (9) Greg Hanson. The Court first considered the issue in the context of a Motion for Protective Order filed by EDI. The Court conducted a hearing on January 5, 2015. In an Order filed on February 2, 2015, the Court declined to require EDI to turn over the cell phones for forensic imaging. The Court granted the protective order to the extent that, instead of producing the mobile phone devices, the parties were ordered to endeavor to jointly request phone and text logs from the carrier.

Thereafter, Plaintiff filed a Motion for Reconsideration (ECF 112). The Court conducted a hearing on that motion on April 17, 2015, and resolved all issues on the record. The Court denied Plaintiff's motion for reconsideration. In the Order, the Court explained that Plaintiff shall exhaust its ability to seek text message information in less intrusive ways than the extraordinary remedy of conducting a forensic examination of personal cell phones. The Court stated that Plaintiff could raise the issue again if depositions of the employees reveal, for example, inconsistencies with text logs or non-substantive and non-responsive answers.

Plaintiff then filed the Second Motion for Reconsideration (ECF 160). In its motion, Plaintiff asserts that the evidence shows that there were communications between former John Crane employees and EDI prior to the employees' departure as employees of John Crane. In addition, John Crane argues that the only way to know the substance of the messages is to view the messages themselves because the employees cannot recall specific conversations.

Success on a motion for reconsideration requires a party to “clearly establish either a manifest error of law or fact or [to] present newly discovered evidence.” Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005). A motion for reconsideration “is not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of the [order].” Templet v. HydoChem, Inc., 367 F.3d 473, 479 (5th Cir. 2004).

Pursuant to the agreed Order Regarding E-Discovery entered in this case, “[a]bsent a showing of good cause ... mobile phones are deemed not reasonably accessible and need not be collected and preserved ...”[1] Generally, only “specific, concrete evidence of concealment, destruction of evidence, or failure to preserve documents and information” will warrant drastic electronic discovery measures. See Sophia v. Chloe, Inc., 2013 WL 5212013, *2 (S.D. CA Sept. 13, 2013). The utility of permitting a forensic examination of personal cell phones must be weighed against inherent privacy concerns. Issues that may be relevant to the inquiry include whether the party withheld information, whether the responding party is unable or unwilling to search for the requested information and the extent to which the requesting party has complied with discovery requests. Klayman v. City Pages, 2014 WL 5426515 (M.D. FL Oct. 22, 2014).

*2 Here, Plaintiff's motion does not show a manifest error of law or fact. Instead, Plaintiff asserts that subsequent depositions of witnesses show inconsistencies and potential untruths in their testimony. The Court reviewed the lengthy exhibits submitted by Plaintiff. At most, the evidence submitted shows witnesses that could not recall specific conversations, inconsistencies between affidavit statements and deposition testimony, and inconsistent testimony about email communications. While these issues present fodder for cross-examination, they do not rise to the level of conduct that warrants the extreme measure of setting aside the inherent privacy concerns associated with a forensic examination of personal cell phones. It is therefore

ORDERED that Plaintiff's Second Motion for Reconsideration (ECF 160) is DENIED.

So ORDERED and SIGNED this 30th day of October, 2015.

See Order Regarding E-Discovery, ECF 25, p. 3.