Johns v. Chemtech Servs/
Johns v. Chemtech Servs/
2021 WL 4498651 (N.D. Ill 2021)
August 27, 2021
Fuentes, Gabriel A., United States Magistrate Judge
Summary
The court denied Chemtech's motion for a court-compelled forensic examination of plaintiff's cellular telephone, citing the need for extraordinary circumstances and a clear showing of discovery misconduct. The court found that the requested examination was not proportional to the needs of the case and that a forensic examination of a party's electronic devices is an intrusive search that must be guarded against.
ARSHIEAL L. JOHNS, Plaintiff,
v.
CHEMTECH SERVICES, INC. Defendant
v.
CHEMTECH SERVICES, INC. Defendant
Case No. 20 C 7299
United States District Court, N.D. Illinois, Eastern Division
Filed August 27, 2021
Counsel
David A. Hemenway, Law Offices of David A. Hemenway PC, Chicago, IL, for Plaintiff.David J. Fish, Thalia Pacheco Argomaniz, Kimberly A. Hilton, Fish Potter Bolanos, P.C., Naperville, IL, for Defendant.
Fuentes, Gabriel A., United States Magistrate Judge
ORDER
*1 This matter is before the Court on discovery referral. (D.E. 14.) Defendant Chemtech Services, Inc (“Chemtech”), in defending against this Title VII employment discrimination lawsuit by plaintiff Arshieal L. Johns (“Johns”), who alleges a race-based termination by Chemtech in March 2020, has moved for a Court-compelled forensic examination of plaintiff's cellular telephone. Defendant's Third Motion to Compel (“Motion”; D.E. 32.) On March 8, 2021, Chemtech served on Johns a Rule 34 request for production of “all cellular telephones owned and/or associated with Plaintiff that he used working during his shifts for Chemtech from July 1, 2018 until present for purposes of inspection and preservation.” Motion, Exh. 7 (D.E. 32-7.) Chemtech claims that Johns has made the forensic examination necessary by failing to produce certain discovery, and that the information in the phone(s) is discoverable because it will help Chemtech prove that its termination of Johns was not discriminatory, in that Johns was disciplined previously for spending too much time on his cell phone during work hours, and that Johns made allegedly inappropriate social media postings that arguably might make his termination more appropriate. Motion at 1-3. Johns responds that Chemtech did not assert either of those rationales for the termination he believes was pretextual, so that the matters to be probed in the forensic examination lie outside the heart of the case. Plaintiff's Response to Defendant's Motion to Compel (“Resp.”; D.E. 34) at 3-6. Johns also expresses a concern about the invasive nature of the proposed forensic examination, and he argues that his conduct in discovery in this case does not amount to the type of extraordinary circumstances in which courts have compelled forensic examinations of personal cellular devices in civil litigation. Id.
Courts around the country have dealt with this type of forensic examination request before in civil matters, and the decisions generally suggest that such an examination will be compelled only in extraordinary circumstances. As Magistrate Judge Cummings has summarized:
A forensic ESI exam constitutes an extraordinary remedy that is required “[o]nly if the moving party can actually prove that the responding party has concealed information or lacks the expertise necessary to search and retrieve all relevant data.” Mirbeau of Geneva Lake LLC v. City of Lake Geneva, No. 08-CV-693, 2009 WL 3347101, at *1 (E.D. Wis. Oct. 15, 2009) (emphasis added). As this language suggests, the non-moving party may be required to submit to a forensic exam even if that party has not intentionally withheld discoverable ESI: in particular, a third-party investigation may be appropriate when the non-moving party “fails to initiate a reasonable process to search for, collect and produce responsive ESI.” Procaps S.A. v. Patheon, Inc., No. 12-24356, 2014 WL 11498061, at *3 (S.D. Fla. Dec. 30, 2014). “Mere suspicion or speculation that an opposing party may be withholding discoverable information is insufficient to support an intrusive examination of the opposing party's electronic devices or information system.” Hespe v. City of Chicago, No. 13 C 7998, 2016 WL 7240754, at *4 (N.D. Ill. Dec. 15, 2016) (internal quotes and citation omitted). In determining whether a third-party exam is required, courts must guard against undue intrusiveness and protect the non-moving party's privacy interests. See John B. v. Goetz, 531 F.3d 448, 459-60 (6th Cir. 2008). To that end, courts must take care to ensure that the request for a forensic exam is proportional to the needs of the case. See Motorola Solutions, Inc. v. Hytera Comm. Corp., 365 F.Supp.3d 916, 925 (N.D. Ill. 2019) (citing cases).
*2 Belcastro v. United Air Lines, Inc., No. 17 C 1682, 2019 WL 7049914, at *2 (Dec. 23, 2019).
Chemtech recognizes as much, insofar as it relies on Belcastro. Motion at 11. In Belcastro, the court allowed a forensic examination of a plaintiff's cell phone over a narrow issue of whether and how a particular highly relevant social media posting had been made (as reflected in a text message), and plaintiff's deposition testimony and representations of counsel conflicted over whether the text message still could be produced. 2019 WL 7049914, at *1. But the record in Belcastro also included a highly concerning inconsistency, in which the plaintiff testified that he had traded in his device in November 2016 without preserving data, before the suit was filed – but the evidence showed that he traded it in a year later, six months after filing the lawsuit. Id. The court ultimately concluded that plaintiff lacked the expertise to find and produce the relevant ESI, as data had been transferred from his old device when he traded it in for the new one; that data could then be searched competently, and the forensic examination was justified. Id. at *3.
Hespe and Motorola Solutions are two Northern District of Illinois cases in which the forensic examination was denied. In Hespe, the district court overruled objections to a magistrate judge's order denying a motion to compel a forensic examination of the civil rights plaintiff's devices whose content were not likely to “go to the heart of this case,” although the text messages at issue was at the “heart” of the case “in a limited sense.” 2016 WL 72407564, at *5. The district court reasoned that defendants sought the device content in the hope of developing impeachment evidence and had not established that plaintiff's production of documents on the relevant issue was incomplete. Id. In Motorola Solutions, the backdrop was a forensic examination request, by the plaintiff in a trade secret misappropriation case, having been made at the very 11th hour of discovery, in which the plaintiff already had considerable evidence of misappropriation of its source code. 365 F. Supp. 3d at 922-23. The location of the requested examination was China. The Motorola Solutions court, per Judge Cole, offered some helpful further insight:
Forensic examination of a party's computers, even on American soil, is no routine matter. The Advisory Committee Notes to Rule 34 recognize that courts must use caution in evaluating requests to inspect an opposing party's electronic devices or systems for ESI, in order to avoid unduly impinging on a party's privacy interests: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. The addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party's electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.
*3 Fed. R. Civ. P. 34, Advisory Committee Notes—2006 Amendment (emphasis added).
Likewise, the Sedona Principles urge general caution in this area:
Civil litigation should not be approached as if information systems were crime scenes that justify forensic investigation at every opportunity to identify and preserve every detail.... [M]aking forensic image backups of computers is only the first step of an expensive, complex, and difficult process of data analysis that can divert litigation into side issues and satellite disputes involving the interpretation of potentially ambiguous forensic evidence.
Id. at 925 (quoting The Sedona Principles, Second Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production 34, 47 (2007)).
Courts outside the Northern District of Illinois similarly have been reluctant to compel forensic examinations of personal devices, mindful of the intrusiveness of this type of search and the broad range of personal and private information the search could yield. “As the Supreme Court has recognized, ‘[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ ” Henson v. Turn, No. 15-cv-01497-JSW (LB), 2018 WL 5281629, at *6 (N.D. Cal. Oct. 22, 2018) (quoting Riley v. California, 573 U.S. 373, 403 (2014)). Henson, like many of the district court decisions in this area, turned on a proportionality analysis under Rule 26(b)(1), with the court considering the burden on the nonmovant's privacy interest in denying the examination of devices for the nonmovant's web browsing history and “cookies.” Id. at *8-9. But the Henson court did allow the nonmovant's protocol in which it was to produce a more limited scope of data, namely whether the nonmovant's browsing history showed the visiting of particular sites. Id.
Additionally, the decisions suggest that a clear showing of discovery misconduct is needed to make a compelled forensic examination permissible. See Tingle v. Hebert, No. 15-626-JWD-EWD, 2018 WL 1726667, at *5 (M.D. La. Apr. 10, 2018) (determining that movant's concerns about evidence spoliation were too speculative to justify a forensic examination); Valdes v. Greater Naples Fire Rescue Dist., No. 2:17-cv-417-FtM-29CM, 2018 WL 4281472, at *6-7 (M.D. Fla. Sept. 7, 2018) (finding no exceptional circumstances warranting forensic examination and adding that there was no evidence of intentional spoliation by the nonmovant). In Belcastro, the nonmovant's deposition testify sharply conflicted with the record evidence on the key question of whether the disputed text messages were retrievable. Belcastro, 2019 WL 7049914, at *1.
Here, the Court would review the requested forensic examination as more likely to be proportional to the needs of this case if the record showed more clearly that Johns has obfuscated or obstructed the discovery, of if the discovery he supposedly hid were more central to the key issues. But neither is the case. First, Chemtech admits that Johns produced text messages but not completely, in that he has not produced text messages from the relevant time period (when Chemtech said he was using his cell phone during work hours) and has not produced video or photo attachments, “complete messages” and “complete data such as phone numbers of senders/recipients.” Motion at 12. Second, Chemtech complains that he has not produced social media posts, when posts already available to Chemtech show Johns posting derogatory material about Chemtech, including a dead-looking, alien-like character and a wrecked-looking building plaintiff and another person associated with Chemtech. Id. at 2, 12. Chemtech sees additional material on plaintiff's cell phone as likely of high relevance, including data about when he was using the phone. Id. The Court is not as inclined to see what Johns has not produced (i.e., “complete” messages or phone data) as so central to the case that exceptional circumstances warranting a full forensic examination. Chemtech has a slightly better argument as to photos and video attachments, in that perhaps Chemtech would find more photos of dead aliens under captions referencing the company, or other material that could well be relevant, but the Court still sees the circumstances as less than exceptional under the case law.
*4 Chemtech also points to various posts it characterizes as racist in nature or tone, and it complains that various “random people” or “member[s] of the public” complained to Chemtech about the Johns postings, including one that the random person thought “express[ed] support to the violence against DHS officers in Portland.” Id. at 3. Respectfully, the Court does not see apparently anonymous complaints by “random people” as generating a need to probe plaintiff's phone for other social media postings that Chemtech may want to call out as political, racist, or whatever, in today's charged social media climate, which generates a tremendous amount of social and political commentary back and forth. Moreover, as was the case in Motorola Solutions, 365 F. Supp. 3d at 922-23, if Chemtech wants to argue that plaintiff's postings eroded the company's good will or cast it in a bad light, and if it can establish the relevancy of that point in this case, it can do so with the information it already possesses. The Court is aware of Chemtech's argument that plaintiff once had a public-facing Facebook account and now does not. The Court simply does not see further electronic discovery of plaintiff's Facebook posts, through a forensic examination, to be proportional to the needs of this case.
There is still the matter of plaintiff having subpoenaed additional text messages from a third-party, AT&T. At this phase of the litigation, with plaintiff's production of documents (including any he received from the AT&T subpoena) not yet complete, the Court does not see a forensic examination of plaintiff's cell phone as proportional to the needs of the case under Rule 26(b)(1) and the cases requiring exceptional circumstances before allowing compelled forensic examinations of a civil litigant's cell phone. Production of the AT&T documents may weaken or strengthen an argument for a forensic examination, but that scenario is now not before the Court.
Defendant's Third Motion to Compel (D.E. 32) is denied.
SO ORDERED.
ENTER: