Marchionda v. Embassy Suites Franchise, LLC
Marchionda v. Embassy Suites Franchise, LLC
2018 WL 8458871 (S.D. Iowa 2018)
August 13, 2018
Jackson, Jr., Stephen B., United States Magistrate Judge
Summary
The parties sparred over the protocol for the forensic examination of the cell phone of Plaintiff, Ms. Marchionda. The Court eventually denied the motion to reconvene the deposition, finding that Defendants had ample opportunity to obtain the information by discovery in the action and that further deposition inquiry into the matter would be unreasonably cumulative and duplicative. The Court also found that the burden upon Ms. Marchionda personally to be further deposed in this litigation significantly outweighed its likely benefit.
Additional Decisions
CHERI MARCHIONDA, Plaintiff,
v.
EMBASSY SUITES FRANCHISE, LLC, individually and by and through its successor in interest, HILTON FRANCHISE HOLDING, LLC; HILTON WORLDWIDE, INC.; HILTON WORLDWIDE HOLDINGS, INC.; JOHN Q. HAMMONS HOTELS MANAGEMENT, LLC; ATRIUM TRS III, LP; and JOHN DOE CORPORATIONS 1-10; Defendants
v.
EMBASSY SUITES FRANCHISE, LLC, individually and by and through its successor in interest, HILTON FRANCHISE HOLDING, LLC; HILTON WORLDWIDE, INC.; HILTON WORLDWIDE HOLDINGS, INC.; JOHN Q. HAMMONS HOTELS MANAGEMENT, LLC; ATRIUM TRS III, LP; and JOHN DOE CORPORATIONS 1-10; Defendants
CIVIL NO. 4:15-cv-00479-JEG-SBJ
United States District Court, S.D. Iowa, Central Division
Filed August 13, 2018
Jackson, Jr., Stephen B., United States Magistrate Judge
ORDER
I. INTRODUCTION
*1 Before the Court is a Motion for Leave to Reconvene Deposition Regarding Cellphone Preservation and Access (Dkt. 283) filed by defendants Embassy Suites Franchise, LLC, Hilton Worldwide, Inc., Hilton Worldwide Holdings, Inc., John Q. Hammons Hotels Management, LLC, and Atrium TRS III, LP (collectively “Defendants”) on June 25, 2018. They request leave of Court pursuant to Federal Rule of Civil Procedure 30(a)(2)(A)(ii) to reconvene the deposition of Plaintiff Cheri Marchionda “for the limited purpose of examining Plaintiff for up to three hours on the issues of preservation and access to her cell phone.” Id. ¶ 7. Defendants submitted a Brief (Dkt. 283-1) in support of their motion.
Plaintiff filed a Brief (Dkt. 303) in opposition to the motion on July 20, 2018. She contends the motion must be denied because, inter alia, Defendants seek information already in their possession and/or which they could have obtained during the discovery period. Defendants filed a Reply Brief (Dkt. 314) on July 27, 2018.
The Court considers the motion fully submitted and finds oral argument by counsel is not necessary. L.R. 7(c). For the reasons which follow, the request for leave to further depose Ms. Marchionda must be denied.
II. BACKGROUND
In this action, Cheri Marchionda seeks damages arising from a sexual assault by Christopher LaPointe which occurred in a guest room at the Embassy Suites in Des Moines, Iowa, while Ms. Marchionda was traveling on business from New Jersey. Dkt. 88. Plaintiff claims she “was attacked, assaulted, terrorized and raped in her hotel room due to the careless, grossly negligent, reckless, willful, wanton and/or outrageous conduct of Defendants.” Id. ¶ 4. She alleges hotel employees gave Mr. LaPointe a key to her hotel room without her permission and then assisted Mr. LaPointe in entering the room by physically unlocking the door. Id. ¶¶ 79-81. She specifies various acts and failures to act which she contends constitutes negligent conduct by Defendants and seeks compensatory and punitive damages. Id. ¶¶ 91-95, 97, 99-100. Defendants deny the allegations of negligence and claims for damages. Dkt. 116 ¶¶ 96-100.
The incidents occurred in April of 2014 and the lawsuit was filed in June of 2015. Dkt. 1. On April 12, 2016, Defendants' counsel sent a “formal litigation hold request” to Plaintiff's attorney “requesting that Ms. Marchionda immediately contact the provider of her cell phone services and request that her records of calls, voicemails, texts, billing and data be preserved for the months of April and May of 2014.” Dkt. 198-1. It was further requested that Ms. Marchionda “maintain and preserve any cell phone [she] used during April or May 2014 and any information contained on that cell phone as well as any backups of that cell phone contained on a cloud based service or a computer.” Id. Plaintiff's counsel responded via email on April 18, 2016:
Mark, in regard to your April 12, 2016 letter regarding Ms. Marchionda's cell phone, she spoke with a representative of her cell phone carrier, advised them of the request in your letter and was advised that records will only be produced in response to a valid subpoena. She was advised that the carrier has no access to voice mail messages. Ms. Marchionda has only one potentially relevant voice mail message on her phone, from Detective Cronin of the Des Moines Police Department, from on or about July 16, 2014. Without waiver of any objection, a copy is attached hereto. As for the remainder of your request, please submit a formal discovery request and plaintiff will respond accordingly. Thank you.
*2 Dkt. 283-2.
On April 29, 2016, Defendants served a Set of Requests for Production on Plaintiff which included:
REQUEST NO. 24: All online profiles, postings, messages (including without limitation tweets, replies, direct messages, status updates, wall comments, groups joined, accounts fol1owed or liked, activity streams, and blog entries), photographs, videos, and online communications that reveal, refer, or relate to events that could reasonably be expected to produce in Plaintiff a significant emotion, feeling, or mental state.
REQUEST NO. 26: All records, documentation, screen shots, or the like of any phone or electronic communications made by Plaintiff on April 10 or April 11, 2014, including but not limited to text messages, phone calls, or messages sent through any application. Plaintiff is requested to check each application on her phone and download or take screen shots of any information responsive to this request.
REQUEST NO. 27: All records, documentation, screen shots, or the like of any internet activity on Plaintiff's phone, computer, tablet, or other electronic device on April 10 or April 11, 2014, ....
Dkt. 198-5.
In June 2016, Defendants obtained records from the cell phone carrier via a subpoena, described by Plaintiff's counsel as follows:
The records itemized calls made from and received by Ms. Marchionda's cell phone from April 1, 2014 to May 31, 2014. The records itemized for virtually each call, among other things, date and time of call, phone number and associated city from which the call was made, phone number and associated city to which the call was made, and length of call.
Dkt. 303-1 ¶ 2.
On June 14, 2016, Defendants served a Request for Inspection on Plaintiff for the following materials:
REQUEST FOR INSPECTION NO. 1: Defendant requests that Plaintiff produce for inspection, by a forensic consulting expert, the cell phone that Plaintiff used during April 2014- May 2014 so that the third-party forensic expert can obtain a complete forensic preservation of the data contained on the cell phone and provide to Defendant any and all texts (including SMS and iMessage), emails, incoming and outgoing phone call information, phonebook/contact data, photos, videos, and voicemail data/messages that were stored or that were deleted from the cell phone or SIM card. To the extent the information is time-stamped we will ask the third- party forensic expert to provide information limited to the period from April 1, 2014, to the present. To the extent the phone is locked or any of the applications from which data is sought are password- protected, Defendant requests that Plaintiff provide the third-party forensic expert with the passcodes.
REQUEST FOR INSPECTION NO. 2: Defendant requests that Plaintiff produce, for inspection by a forensic consulting expert, any computer used to backup Plaintiff's cell phone (used April 2014-May 2014) and that Plaintiff provide the password protection information if those backups are password protected.
REQUEST FOR INSPECTION NO. 3: Defendant requests that Plaintiff provide the username, password, and any other information needed to access any cloud-based storage backup that Plaintiff would have used to back up her cell phone that was in use during April 2014-May 2014.
*3 Dkt. 198-3. Plaintiff responded on July 7, 2016, setting forth the same response to each request:
Objection. This request is unreasonably broad and burdensome. It is not limited in time, scope or subject matter. Also, it violates Plaintiff's right to privacy, and is oppressive, harassing, annoying and otherwise improper. It also seeks proprietary, confidential and/or otherwise protected business information. Furthermore, it seeks irrelevant information and information not reasonably calculated to lead to the discovery of admissible information. Moreover, it does not provide any proposed and appropriate search, retrieval and preservation protocols or parameters. Without waiving these objections, Plaintiff responds that she cannot comply with the request as the subject cell phone - and any associated computer - are not owned by her and thus she has no right or permission to turn them over to defendants or their counsel or any third-party forensic expert. The phone and computer are owned by and were issued to Plaintiff by her employer with the understanding that they could be used for business and personal matters. Additionally, any username and password information, and any cloud-based storage cannot be disclosed for the same reasons.
Dkt. 198-4.
On August 22, 2017, Defendants served a subpoena on Ms. Marchionda's employer, Rich Products Corporation (“Rich Products”), to produce the cell phone for a forensic examination. Dkt. 198-6. The subpoena further commanded: “To the extent the device is locked, we request any and all passcodes.” Id. Attached to the subpoena was a “Forensic Examination Protocol” which required Rich Products to provide the cell phone to Computer Forensic Services, Inc. and “also provide the passcode or credentials or [sic] for any provided devise or cloud service accounts, to which the mobile data was or may have been synched.” Id. After Computer Forensic Services, Inc. executed a confidentiality agreement in October of 2017, Rich Products requested that Ms. Marchionda's attorney deliver the cell phone as directed. Dkt. 198-7. Plaintiff's counsel would not agree to release the cell phone absent provisions in the protocol allowing Plaintiff the ability to review the obtained information. Dkt. 186-7. Eventually, in November of 2017, the parties agreed to a revised protocol for the forensic examination and the cell phone was provided to Computer Forensic Services, Inc. Dkt. 186-8.
*4 On December 6, 2017, Defendants filed a Motion to Continue Discovery Deadlines and Trial (Dkt. 186) requesting expedited relief. Defendants indicated a desire to reschedule Plaintiff's deposition set for December 14, 2017, so that they could have the benefit of certain discovery described within the motion prior to deposing Plaintiff. Id. p. 1. If the motion was denied, Defendants indicated they would “go forward with Plaintiff's deposition (despite not having all the necessary information and documents) as scheduled in order to meet the other trial scheduling deadlines.” Id. pp. 1-2. In support, and as related to the cell phone, Defendants stated:
33. On November 28, 2017, Defense counsel advised Plaintiff's counsel that Plaintiff's cell phone was encrypted and that a password was needed to access the device's contents. On November 28, 2017, Plaintiff's counsel provided a potential password, but that passcode did not work.
34. On December 6, 2017, Plaintiff's counsel advised that they were still having difficulty identifying Plaintiff's passcode, and provided some passcodes to try. Plaintiff's counsel advised that Defense counsel should follow back up if they did not work.
35. To date, Defendants are waiting on establishing a working passcode so that Defendants can discover the contents of Ms. Marchionda's cell phone.
36. Once a working passcode is provided, pursuant to the protocol agreed on by the parties, Plaintiff will have three days to review the information provided by Defendants' forensic consultant. Following those three days, Defendants' forensic consultant will provide the non-privileged information to Rich Products for review. Rich Products will then have three days to review for any applicable privilege. [ ]
37. Given the fact that Defendants have still not been able to gain access to the contents of the cell phone, Defendants will not have the cell phone contents prior to Plaintiff's deposition currently scheduled for December 14, 2017.
38. Defendants would like additional time to obtain the contents of Ms. Marchionda's cell phone before moving forward with her deposition.
Id. ¶¶ 33-38. After the filing of the motion, the parties continued to communicate as to obtaining information from the cell phone including Defendants suggesting on December 7, 2017, “another method of obtaining a copy of the phone by accessing a backup stored on Ms. Marchionda's iCloud account.” Dkt. 198-12 p. 3. Plaintiff's counsel replied via email the same day and provided Ms. Marchionda's iCloud username and password. Id. p. 2. On December 8, 2017, Defendants' counsel replied:
This username and passcode worked. However, Ms. Marchionda has a two factor authentication, and a code that is sent to her email is necessary to access the account. Please let me know when Ms. Marchionda receives the authentication code. Thanks.
Id. An authentication code was not provided by Plaintiff to Defendants, and Computer Forensic Services, Inc. was unable to download a backup of the cell phone from the iCloud. On December 11, 2017, the Court held an expedited hearing and granted in part and denied in part Defendants' motion by maintaining the trial date but extending other deadlines. Dkt. 190, 191.
The first deposition of Ms. Marchionda was subsequently taken on December 14, 2017, for approximately 7 hours. It began with the following statements by counsel:
MR. SAGER: This will be the deposition of Cheri Marchionda taken by the defendants pursuant to agreement of counsel and notice as to the time and place.
We are taking this deposition with the understanding and agreement that we'll have the opportunity to take a supplemental deposition later.
*5 Earlier this week, on Monday of this week, we had a telephonic hearing with Judge Jackson, at which point it was discussed that the defendants would rather not proceed at this time today with Ms. Marchionda's deposition because we're still waiting for some additional documents we wanted to have in before we started with the deposition.
What was discussed on the call with the Court was a cell phone download of Ms. Marchionda's cell phone that the parties are working together to try to effectuate.
And, also, a potential - any potential change in her employment, we would like the opportunity to take a supplemental deposition on those issues.
Aside from that, we've discussed with plaintiff's counsel the fact that there are certain medical records we don't have at this point. Most notably, the records of Dr. Bobrow, who we understand to be a treating psychologist going back sometime in the early 2000s.
So with that said, we are proceeding forward with today's deposition with the understanding and, we hope, agreement that we'll have the opportunity to take a supplemental deposition later, if necessary, if we obtain records from the cell phone download, should there be any change in employment, and should it be warranted pending receipt of Dr. Bobrow's medical records.
And, of course, if we get other records, we may want to ask for a supplemental deposition. Like any other time, y'all can take your position, and if we have to go to the Court, we'll go to the Court.
MR. BRANDES: The plaintiff's position is that we've stated our position to the Magistrate on the record. And rather than rehash the email I sent to you yesterday, I just incorporate that by reference, the email I sent to Mr. Sager and copied to Mr. Schultheis yesterday outlining the plaintiff's position on all of those items that Mr. Sager just mentioned.
Like I said to the Magistrate, to the extent there's some relevant issue from the iCloud backup download, to the extent that she does actually change her job position, to the extent that, you know, Dr. Bobrow actually exists and has records and produces records and there's something in there that's relevant and reasonable, we will produce her for an additional deposition.
We will not produce her for an additional deposition for any and all records. And that's the position that I stated in my email. But I'll let the email stand for what it says.
MR. SAGER: Okay. We can get started.
Dkt. 207-2 pp. 7-10. Near the end of the deposition, after approximately 5 hours, counsel had a discussion off the record then made the following statements:
MR. SAGER: We're going to go another hour today and then we'll come back hopefully sometime later in January and finish the deposition. We''ll have four hours in which to conclude the deposition at that time. Is that agreeable?
MR. VILLARI: It's agreeable. And that will include the supplemental deposition that the Court has already granted you and it's four hours and we're done.
MR. SAGER: Correct.
Dkt. 207-2 pp. 11-13.
After the deposition, counsel for the parties continued to spar over the protocol for the forensic examination of the cell phone, including as to whether Plaintiff's forensic expert could observe Defendants' forensic expert who opposed such request due to concerns of revealing proprietary information. Dkt. 207-2 pp. 1-6, 14-15. During this discourse, on December 21, 2017, Defendants' counsel indicated: “We have had to resort to the iCloud method of copying and inspecting Ms. Marchionda's cell phone due to the unexpected encryption of the phone and your client's inability to produce the passcode.” Id. p. 2. Later, on January 6, 2018, Defendants' counsel stated: “We were not inferring that you or Ms. Marchionda took steps to encrypt the phone or hide the passcode.” Id. p. 4. Counsel eventually agreed Plaintiff's forensic expert would download the backup copy from the iCloud account and provide it to Computer Forensic Services, Inc. for examination. Dkt. 198 ¶ 24.
*6 Ms. Marchionda was deposed again on January 29 and 30, 2018, for approximately 4 hours. According to Defendants' counsel, prior to the start of the deposition on January 29, Plaintiff's attorney indicated he was almost through the review of the cell phone information obtained by Plaintiff's consultant but the consultant was unable to retrieve text messages prior to January 2018 due to a 30 day auto-delete setting on the cell phone. Dkt. 198-14, Dkt. 283-1 p. 7. At the conclusion of the deposition on January 30, counsel engaged in the following colloquy:
MR. SAGER: Okay. Thank you Ms. Marchionda. I really appreciate you sitting for your deposition. I appreciate your patience.
I guess we'll conclude the deposition with the understanding that, at least from the defendants' perspective, once we get cell phone - if we do get cell phone and download records - from our perspective, we'll have the opportunity to take an additional deposition for some period of time, or if plaintiff disagrees with that, we'll obviously petition the court as necessary and take it up with the court at that time.
MR. BRANDES: And as I told you this morning and before, the four hours was to include the issue of the backup data. While I understand and agree that you don't have the backup data yet, what I told you this morning is that you should reserve some time with the four hours today to dedicate to that issue.
You advised me that you were unable or unwilling to do that and you said you were going take the deposition as you saw fit. And we obviously have a disagreement on that issue.
So, certainly, we're going to be producing the backup data to you and then we will discuss it.
MR. SAGER: Sure. And just to be clear, Paul, when I said we would be - I don't know if I said we're unwilling or unable. We agreed at the conclusion of last deposition about a time period for this deposition. And the thought, the hope, was that we would have the cell phone records. In the interim, obviously, as you know, we don't have them at this point in time.
I've got tons more questions I would ask if we didn't agree on this time limit. And there's no way for me to be able to estimate how long I would need to ask any questions about the cell phone records, when I don't know what's on them, if anything. I can't do that, or we can't do that until I see them.
MR. BRANDES: I understand that's your position. The record will speak for itself.
MR. SAGER: Sure. Thank You.
Dkt. 207-2 pp. 16-18.
On February 7, 2018, Defendants filed a Motion to Compel and Request to Reconvene Deposition (Dkt. 198), stating:
Computer Forensic Services stands ready and able to download the backup copy of Plaintiff's cell phone from her iCloud account. All that is needed is Plaintiff's authentication. Computer Forensic Services, however, refuses to complete the download under the observation of Plaintiff's expert.
Allowing Plaintiff's expert to “watch over the shoulders” of Computer Forensic Services is completely unnecessary, and would risk exposing Computer Forensic Services' unique proprietary means and methods. Computer Forensic Services will not agree to such a procedure—and rightfully so.
Id. ¶¶ 31, 32. Defendants claimed they “have not been able to gain access to the contents of Plaintiff's cell phone” and “have not been able to depose Plaintiff regarding the contents of her cell phone.” Id. ¶ 40. Defendants requested that the Court compel Plaintiff to grant Computer Forensic Services, Inc. access to her iCloud account to download a backup copy of her cell phone, without supervision by Plaintiff's expert, or to produce the device's encryption code. Id. p. 10. Defendants also requested additional time to depose Ms. Marchionda after the contents of the cell phone have been produced and reviewed. Id.
*7 Plaintiff opposed the motion contending she “has been reasonably cooperating” with Defendants' efforts to obtain the data but insisting her own consultant be permitted to observe Defendants' forensic expert accessing her iCloud account to protect her security and privacy concerns. Dkt. 201 ¶¶ 1-2. In addition, Plaintiff resisted being further deposed, noting she was already “deposed for 11 hours, including regarding her recollection of phone calls and text messages on or about the date of the incident and the days thereafter.” Id. ¶ 40. In addition, Plaintiff indicated a second consultant had been retained “who is evaluating the data” from the cell phone and “should be able to produce a final result shortly.” Id. ¶ 26.
The parties were directed to submit supplemental information but the Court eventually denied the motion without prejudice primarily because it remained uncertain as to whether Plaintiff had produced cell phone data obtained by her consultant to Defendants. Dkt. 228 pp. 3-4. Consequently, Plaintiff was ordered, to the extent it had not already been done, to complete the production of the cell phone data to Defendants by no later than April 3, 2018. Id. p. 4. The Court determined Defendants' request for additional time to depose Plaintiff was premature. Id. Based on the record before the Court at that time, there was no reason for allowing further deposition of Ms. Marchionda. Id.
On March 28, 2018, Plaintiff filed a Status Report Regarding the Production of Plaintiff's iPhone iCloud Backup Data (Dkt. 231). Plaintiff's attorney indicated Ms. Marchionda's iPhone iCloud backup data was being produced to Defendants, along with a Privilege Log detailing redactions. Id. ¶ 3. According to Defendants, the data produced by Plaintiff “revealed only messages from January 23, 2018, to February 22, 2018 (the date of the inspection), thereby confirming [Plaintiff's counsel's] assertion that the device was set to automatically delete text messages older than 30 days.” Dkt. 283-1. Defendants further indicate that, in April 2018, they “became aware of an examination method that could bypass the encryption security and permit an examination of the physical device, which would include deleted data.” Id. However, as explained by Defendants, after obtaining permission to bypass the encryption security from Ms. Marchionda and her employer, a forensic examination was not able to be completed because restrictions were enabled on the cell phone which require a passcode. Id.
Subsequently, counsel engaged in communications regarding potential passwords, which Plaintiff's attorney describes as follows:
With regard to Ms. Marchionda's cell phone used as of April 2014, via email on May 21, 2018, I provided defense counsel, Mr. Cady, two numeric passcodes Ms. Marchionda thought could be for a “restrictions” setting on her cell phone, but advised Mr. Cady that Ms. Marchionda was uncertain. Mr. Cady subsequently advised me via email that neither passcode worked. On May 22, 2014,[1] Mr. Cady advised me by email that if Ms. Marchionda was unable to provide a correct passcode, the defense forensics expert would attempt to crack the passcode. On May 24, 2014, I advised Mr. Cady by email that Ms. Marchionda did not know of any other possible passcodes. Therein, I provided Mr. Cady with a list of 13 passcodes from Ms. Marchionda (including one of the earlier provided codes), advising that they were the universe of passcodes Ms. Marchionda could recall using regardless of purpose.
Dkt. 303-1 ¶ 4. The email sent by Plaintiff's counsel on May 24, 2018, stated:
I again conferred with Ms. Marchionda. She knows of no other code. However, she provided me with a list (below) of all codes she has ever used regardless of purpose. You can try these for the limited purpose of turning off the parental control only.
*8 Dkt. 283-4. According to Defendants, six of the passcodes were tried but all failed. Dkt. 283-1. Defendants contend they “cannot attempt to enter all 13 potential passcodes because the data on the device will automatically be permanently destroyed after 10 failed attempts.” Id.
On June 25, 2018, Defendants filed their Motion for Leave to Reconvene Deposition Regarding Cellphone Preservation and Access (Dkt. 283) now before the Court.
IV. MOTION FOR LEAVE TO RECONVENE DEPOSITION
As described by Defendants in their motion, during the course of the litigation, they “have actively pursued the discovery of Plaintiff's cellphone data since April 2016 to access potentially relevant and important information that may be vital to the defense of this case.” Dkt. 283 ¶ 1. But from their perspective, they “have continually been met with hurdle after hurdle in this long, drawn-out pursuit.” Id. ¶ 2. According to Defendants, as of the filing of their motion, they “have only been provided with 30 days of text messages from January and February of 2018.” Id. ¶ 3. Defendants explain “the cellphone is protected by encryption security, password-protected restrictions, and has a 30-day auto-delete function – all of which have prohibited Defendants from completing a forensic examination of the device.” Id. ¶ 4. Defendants suggest “Plaintiff allegedly does not know the passwords and passcodes to bypass these security restrictions” and complain they “have no knowledge as to how and when the 30-day auto-delete function was enabled.” Id. ¶ 5 (emphasis added). Although Ms. Marchionda has been previously deposed for approximately 11 hours, counsel for Defendants contend they “have not had an opportunity to depose Plaintiff about these issues” because they were learned of after the prior depositions. Id. ¶ 6. Consequently, they now seek leave to “reconvene the deposition” to examine Plaintiff “on the issues of preservation and access to her cell phone.” Id. ¶ 7.
In their supporting Brief, Defendants emphasize their “forensic expert remains in possession of the phone without the present ability to complete a forensic examination of the device's contents due to the encryption protection, the 30-day auto-delete function, the restrictions settings, and Ms. Marchionda's apparent inability to produce the relevant passwords and passcodes.” Dkt. 283-1 p. 9. Defendants suggest there is “good reason to believe additional relevant data is available from deleted files on the physical device.” Id. As such, they seek “to explore who set those restrictions, when they were set, and whether Ms. Marchionda can provide the information so that Defendants can access the device.” Id. p. 10. They note Federal Rule of Civil Procedure 30(a)(2)(ii) permits a party to obtain leave of court to depose a deponent that has already been deposed in the case. Id. p. 9. From their perspective, “[g]ood cause exists for leave to depose Ms. Marchionda for additional time on the limited subjects of the preservation and access to her cellphone.” Id. Defendants request “up to 3 hours to depose Ms. Marchionda on the limited subjects of the preservation of messages, phone calls, and other relevant data on her cellphone, efforts Ms. Marchionda took to respond to Defendant's formal document requests for cellphone information and data, the activation/deactivation of the 30-day auto-deletion function on her cellphone, the placement of encryption security on her device and the encryption password, and the enabling of restrictions on her cellphone and the restrictions password.” Id. p. 10.
*9 In response, Plaintiff insists the motion must be denied for several reasons. Dkt. 303 p. 1. Plaintiff first contends the motion is untimely because Defendants waited six weeks after the discovery deadline passed on May 11, 2018, to request further deposition on these matters, and belatedly filed their motion beyond the permissible 14 days to file motions to compel after discovery closes. Id. p. 7. Plaintiff cites to the Court's Local Rule 37(c) which provides: “Motions to compel must be filed as soon as practicable. In any event, except for good cause shown, motions to compel must be filed within 14 days after the discovery deadline.” L.R. 37(c). Plaintiff contends Defendants have not shown good cause as to why their discovery request and motion were untimely. Dkt. p. 7. Plaintiff expounds as follows:
Defendants admit in their Motion that since November 2017, they have had physical possession of Ms. Marchionda's cell phone that she used at the time of the incident. They have had her cell phone call records since 2016. They have deposed Ms. Marchionda on three occasions for over eleven (11) hours. Since the time of Plaintiff's second deposition session on January 29, 2018 (i.e., 5 months before Defendants filed their present Motion), Defendants have known that Ms. Marchionda's cell phone back up data only contains the most recent thirty (30) days of text messages. ECF Doc. 198 at ¶ 26. Since January 30, 2018, they have known what efforts she made to preserve her phone and its data. Moreover, Defendants have had all of Ms. Marchionda's requested cell phone back up data (except for privileged items and contact list) since March 29, 2018. Nevertheless, Defendants failed to request further deposition of Ms. Marchionda after having all information and failed to file a Motion to compel a continuation of Ms. Marchionda's deposition on the present issue in advance of the Court-ordered discovery deadline and discovery motion deadline. This is not the picture of good cause, but rather of unreasonableness. Because Defendants' Motion is untimely, it must be denied, especially since good cause has not been established.
Id. p. 8.
In addition, Plaintiff contends Defendants had the opportunity to address issues of cell phone data, passwords and preservation during her prior depositions. Id. p. 9. It is emphasized that Defendants' counsel was explicitly advised at the last deposition on January 30, 2018, to either question Ms. Marchionda about the cell phone matters within the agreed time or reserve time to do so at a later point before discovery closed. Id.From Plaintiff's perspective, Defendants' counsel “opted” not to question her “to their satisfaction” on issues of which they were “aware for many months, and indeed already covered at deposition.” Id. Plaintiff emphasizes Defendants have had 11 hours to question her about her passwords and efforts to preserve the cell phone data, and “she has already provided information at deposition and through counsel throughout the discovery process.” Id. pp. 9-10. In Plaintiff's view, to force her “to appear for yet another deposition is nothing more than an attempt to harass her.” Id. p. 10.
In reply, Defendants contend their motion is timely and any delay was caused by Plaintiff. Dkt. 314 pp. 1-3. Defendants dispute the application of Rule 37(c) and emphasize they are seeking leave to reconvene the deposition of Ms. Marchionda under Rule 30(a)(2)(A)(ii) “to obtain additional sworn statements regarding Plaintiff's discovery preservation efforts.” Id. p. 1. Defendants argue they “have been working on obtaining relevant information from Plaintiff's cell phone for years” but “have been met with many obstacles, objections, and unexpected surprises during this process.” Id. p. 2. Defendants contend they “worked in good faith to resolve this dispute without Court intervention” and filed their motion on June 25, 2018, “after exhausting all efforts to work with Plaintiff to obtain access to the device.” Id.
*10 In addition, Defendants insist they had no reason to question Ms. Marchionda regarding this dispute during her previous depositions. Id. p. 3. They emphasize they “had not yet received any data from Plaintiff's iCloud account” before the depositions on January 29-30, 2018. Id. “Defendants expected to receive access to deleted files and expected to be able to complete a full forensic examination of the device.” Id. From their perspective, “Defendants had absolutely no reason to question Plaintiff regarding her phone's restrictions because Defendants were unaware at the time that the phone's restrictions settings were activated.” Id. They assert the information to be sought from Ms. Marchionda is highly relevant to the defense of Plaintiff's claims. Id.
IV. COURT'S ANALYSIS
After consideration of the parties' submissions, the Court finds Defendants have failed to show a sufficient basis or good cause for allowing additional time to depose Ms. Marchionda regarding the preservation of and access to the cell phone data. Defendants had fair opportunity to inquire into those matters during the prior 11 hours Ms. Marchionda made herself available for deposition. There was no Court order or rule preventing counsel to inquire into those matters and Defendants have not shown Ms. Marchionda herself someway impeded an examination on those topics during the depositions. Nor have Defendants shown inquiry into those matters would have necessarily taken significant time relative to the 11 hours provided by Ms. Marchionda.
Moreover, prior to those depositions, Defendants were well-aware of potential issues regarding the preservation of and access to the cell phone data beginning as early as April of 2016 when they explicitly requested that Ms. Marchionda “maintain and preserve any cell phone [she] used during April or May 2014 and any information contained on that cell phone as well as any backups of that cell phone contained on a cloud based service or a computer,” followed by explicit discovery requests for passwords for the cell phone and iCloud backup data. Dkt. 198-1, 198-3. When advised the cell phone was the property of Ms. Marchionda's employer, Defendants again, in August of 2017, explicitly requested from Rich Products via subpoena “the passcode or credentials or [sic] for any provided devise or cloud service accounts, to which the mobile data was or may have been synched.” Dkt. 198-6. By that time, Defendants had consulted Computer Forensic Services, Inc. which presumably would have advised Defendants on the necessity of obtaining passwords and related information to perform a forensic examination of the cell phone data. Contrary to Defendants' assertions, the technological difficulties Computer Forensic Services, Inc. has purportedly encountered since then does not provide sufficient reason for now allowing inquiry into matters Defendants could have, and perhaps should have, during the previous 11 hours of deposing Ms. Marchionda in December of 2017 and January of 2018.
Furthermore, the record reflects that information has been provided to Defendants regarding both the preservation of and access to the cell phone data via Ms. Marchionda's deposition testimony and communication with her counsel. In that regard, Defendants' counsel specifically inquired into the topic of preserving the cell phone data and obtained a substantive response from Ms. Marchionda during the deposition on January 30, 2018:
Q. Going back to the phone that we were talking about just a few minutes ago -- did you ever receive a copy of an April 12, 2016 letter that was actually sent to your lawyer, Mr. Brandes, asking that your phone be held and preserved and all data on the phone be preserved and held in its current condition?
*11 A. Yes.
Q. Okay. Do you have a copy of that letter?
A. I'm sure it's somewhere in the files that I've received, yeah.
Q. Okay. Tell us what you did, with respect to your phone, once you received that letter?
A. I believe I was still using the phone. So Rich's gives us upgrades, I think, every couple of years. So I first asked, you know, our attorney at Rich's -- that I got the letter. Then she went back and forth. I think she went back and forth with the attorneys, because they own the phone. So it's their property. I can't, you know, just give it away. It's like my laptop. So I think, eventually, my upgrade came and I just put the old phone in my new phone's box and just left it there.
Q. And what steps -- you said you were talking to the attorney at Rich's. Tell us his or her name.
A. Jelon (ph).
Q. What steps did you ask be taken to hold, preserve the data that was on the phone?
A. Oh, nothing. I just shut the phone off. I mean, I would think it preserves just that -- that way.
Q. And you gave it to -- who did you give it to?
A. It's in the box, inside the new box. I can't remember if I gave it to my attorneys or not.
Q. Okay. What's your understanding about how long data, texts, calls, are preserved?
MR. BRANDES: Objection. Go ahead.
THE WITNESS: I have no clue. I mean, my IT group – you know, I call them for every little thing. So I know, with that phone, I was having memory problems. I wasn't being able to receive e-mails. Apparently, there was a lot of my space being taken up with photos, music, texts, pictures, things like that I didn't know, at the time, like, when you send a picture within a text, that takes up memory. So they made some changes. We deleted some things, like some of my music, things like that, to give me memory. When they bought me the new phone, then they gave me one that had a lot more memory.
Dkt. 283-3 pp. 6-7. Defendants' counsel then turned to inquire into topics unrelated to the cell phone. The transcript portions submitted to the Court does not reflect that either a shortage of time or some impediment by Ms. Marchionda or her attorney, or any other reason, prohibited counsel from inquiring further into Ms. Marchionda's preservation of the cell phone data or simply asking what passwords Ms. Marchionda utilized for the cell phone or the iCloud account.
Under those circumstances, as reflected in the record before this Court, there is no justification for requiring Ms. Marchionda to now appear for another deposition on matters Defendants could have previously inquired into but chose not to do so. The Federal Rules of Civil Procedure govern the procedure in all civil actions before this Court, including the discovery process. The rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1 (emphasis added).
From the Court's perspective, the primary rule to begin with is Rule 30(d)which limits the duration of a deposition as follows:
*12 (1) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited to one day of 7 hours. The court must allow additional time consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.
Fed. R. Civ. P. 30(d)(1). Ms. Marchionda made herself available for not only the 7 hours limited to by rule, but also an additional 4 hours by agreement. There is no evidence before the Court indicating Ms. Marchionda improperly impeded or delayed the examination by Defendants' counsel during those 11 hours of deposition. In addition, in the opinion of the Court, Defendants' counsel had an opportunity to “fairly examine” Ms. Marchionda on the topics of the preservation of and access to the cell phone data if they had chosen to do so.
Rule 30(a), under which Defendants seek their relief, addresses when a deposition may be taken:
(1) Without Leave. A party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent's attendance may be compelled by subpoena under Rule 45.
(2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(1) and (2):
(A) if the parties have not stipulated to the deposition and:
(i) the deposition would result in more than 10 depositions being taken under this rule or Rule 31 by the plaintiffs, or by the defendants, or by the third-party defendants;
(ii) the deponent has already been deposed in the case; or
(iii) the party seeks to take the deposition before the time specified in Rule 26(d), unless the party certifies in the notice, with supporting facts, that the deponent is expected to leave the United States and be unavailable for examination in this country after that time; or
(B) if the deponent is confined in prison.
Fed. R. Civ. P. 30(a). Defendants seek leave to “reconvene” the deposition of Ms. Marchionda under subsection (2)(A)(ii).
As provided within both Rules 30(a) and 30(d), the allowance of additional time over 7 hours or the granting of leave to further depose a previously deposed individual must be “consistent with Rule 26(b)(1) and (2).” Fed. R. Civ. P. 30(a)(2), 30(d)(1). Rule 26(b)(1) defines the scope of discovery in general, and unless otherwise limited by court order, as follows:
Parties may obtain discovery regarding any nonprivileged matter that is 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). Subsection 26(b)(2) provides for the following limitations on discovery:
(A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36.
*13 (B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
Fed. R. Civ. P. 26(b)(2).
The provisions of Rule 26(b)(2)(C), in the Court's opinion, mandate the denial of Defendants' request for leave to “reconvene” the deposition of Ms. Marchionda. Foremost, Defendants have “had ample opportunity to obtain the information by discovery in the action.” Fed. R. Civ. P. 26(b)(2)(C)(ii). As discussed above, there was ample opportunity for Defendants to sufficiently inquire into both the preservation of, and access to, the cell phone data during the prior 11 hours of deposing Ms. Marchionda. In addition, given that during the deposition on January 30, 2018, counsel specifically inquired into the topic of preserving the cell phone data, and Ms. Marchionda provided substantive responses, further deposition inquiry into the matter will be unreasonably cumulative and duplicative, and must not be allowed by the Court. See Fed. R. Civ. P. 26(b)(2)(C)(i).
Further, the Court does not believe Defendants' request to “reconvene” the deposition of Ms. Marchionda is consistent with or warranted under the relevancy and proportionality analysis of Rule 26(b)(1). The Court has considered all the factors within Rule 26(b)(1) but specifically notes, in its opinion, the burden upon Ms. Marchionda personally to be further deposed in this litigation significantly outweighs its likely benefit.
V. CONCLUSION AND ORDER
For those reasons, Defendants' Motion for Leave to Reconvene Deposition Regarding Cellphone Preservation and Access (Dkt. 283) shall be, and is hereby, denied.
IT IS SO ORDERED.
The Court assumes counsel incorrectly stated 2014 instead of 2018.