Tenpenny v. Prime Now, LLC
Tenpenny v. Prime Now, LLC
2020 WL 12894958 (M.D. Tenn. 2020)
January 8, 2020

Holmes, Barbara D.,  United States Magistrate Judge

Text Messages
Mobile Device
Protective Order
Proportionality
Failure to Produce
Forensic Examination
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Summary
The court granted the plaintiff's motion for a protective order from the forensic examination requested by the defendant of her phone and other electronic devices, with restrictions on the forensic examination. The court found that the ESI was relevant to the claims and defenses in the case, and that its probative value outweighed the potential harm to the victim.
Additional Decisions
TINA TENPENNY
v.
PRIME NOW, LLC
Case No. 3:19-cv-0420
United States District Court, M.D. Tennessee, Nashville Division
Filed January 08, 2020

Counsel

Constance A. Mann, The Law Offices of Constance Mann, Franklin, TN, Gary Dean Copas, Nashville, TN, for Tina Tenpenny.
C. Eric Stevens, Elise Hofer McKelvey, Littler Mendelson, P.C., Nashville, TN, for Prime Now, LLC.
Gary Dean Copas, Nashville, TN, for Jared Ryan.
Holmes, Barbara D., United States Magistrate Judge

ORDER

*1 Tina Tenpenny, the plaintiff in this action, alleges that she was retaliated against in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et al., for reporting alleged sexual harassment by a co-worker, Jared Ryan. Now before the Court is Plaintiff's motion for a protective order (Docket No. 24) from the forensic examination requested by Defendant of Plaintiff's phone and other electronic devices that she used to communicate with Ryan. The Court has reviewed Plaintiff's memorandum of law and offer of proof (Docket Nos. 24-1 and 24-2), as well as the response filed by Defendant (Docket No. 26) and Plaintiff's reply (Docket No. 27). For the reasons set out below, Plaintiff's motion (Docket No. 24) is GRANTED IN PART AND DENIED IN PART as provided below. Plaintiff must produce her cellphone and any other electronic devices with which she communicated with Ryan for limited forensic examination on the conditions and restrictions detailed below.
 
Also pending is Plaintiff's motion for an extension of the deadline to amend the pleadings or add parties (Docket No. 28), which is also GRANTED.[1] The deadline for motions to amend or add parties is extended to February 21, 2020. All other case management deadlines and provisions found in prior orders and not modified herein remain in effect.
 
Plaintiff brings this retaliation lawsuit under Title VII alleging that she was unlawfully terminated for reporting claims of sexual harassment by a co-worker, Jared Ryan. Plaintiff insists that Ryan began stalking and sexually harassing her in January of 2018 (and continuing throughout February of 2018), which she reported to manager Sean McHugh in January of 2018. Plaintiff asserts that the harassment included inappropriate text messages sent to her by Ryan. Plaintiff admits that, prior to her report of sexual harassment, she took a personal trip to the beach with Ryan's parents and Ryan but denies that there was ever a romantic or otherwise personal relationship between she and Ryan.
 
Defendant contends that Plaintiff refused to provide the allegedly harassing text messages, both during its investigation of her claims prior to litigation and in discovery in this case. Defendant further maintains that Plaintiff was terminated because she provided inconsistent and false statements during Defendant's investigation of her sexual harassment claims, in violation of Defendant's Workplace Harassment policy.
 
In discovery, Defendant requested all communications between Plaintiff and Ryan.[2] In response, Plaintiff produced four pages of partial text messages between she and Ryan. Defendant also requested that Plaintiff produce for forensic analysis all mobile devices and other electronic devices that Plaintiff used to communicate with Ryan. Plaintiff seeks a protective order from this forensic examination.
 
*2 The scope of discovery is “within the sound discretion of the trial court.” S.S. v. E. Ky. Univ., 532 F.3d 445, 451 (6th Cir. 2008) (quoting Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir. 1981)). As a general matter, Federal Rule of Civil Procedure 26 allows discovery of “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1) (2017). Rule 26(c) provides for the issuance of a protective order limiting discovery upon a finding of good cause that such an order is necessary to protect a party from “annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1).
 
The starting point for consideration of the propriety of a protective order is whether the requested discovery is relevant to the subject matter of the litigation. Relevance for purposes of discovery is broadly construed, and the information sought need not be admissible to be discoverable. Fed. R. Civ. P. 26(b)(1). However, the “desire to allow broad discovery is not without limits and the trial court is given wide discretion in balancing the needs and rights of both plaintiff and defendant.” Scales v. J.C. Bradford and Co., 925 F.2d 901, 906 (6th Cir. 1991).
 
The Court's inquiry starts at relevance and therefore must begin with the legal framework of Plaintiff's cause of action. To prevail on a retaliation claim under Title VII, the plaintiff must establish: (1) that she engaged in a protected act; (2) that her protected action was known by the defendant; (3) that she experienced a materially adverse employment action; and, (3) a causal connection between the protected activity and the materially adverse employment action. Rogers v. Henry Ford Health System, 897 F.3d 763, 775 (6th Cir. 2018). Absent direct evidence of retaliation, the plaintiff must first make out a prima facie case of retaliation. Id. at 772. Then, the burden shifts to the defendant to proffer a legitimate, non-retaliatory reason for its employment decision. Id. If the defendant does so, the plaintiff must then prove by a preponderance of the evidence that the reasons offered by the defendant were pretextual. Id.
 
Central to Plaintiff's motion is the extent to which Defendant may seek discovery of Plaintiff's personal relationship with Ryan through a forensic examination of her cellphone (or other electronic devices). “ ‘The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite broad.’ ” Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580, 593 (6th Cir. 2014) (quoting Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998)). However, when a plaintiff asserts a claim of sexual harassment, the parameters of discovery have long been narrowed by the courts' interest in guarding against attempts to “harass, intimidate, and discourage the plaintiff in her efforts to prosecute her cause.” Priest v. Rotary, 98 F.R.D. 755, 761 (N.D. Cal. 1983); Mitchell v. Hutchings, 116 F.R.D. 481, 483 (D. Utah 1987) (“Broad discovery has been coupled, however, with an array of protective orders designed to prevent discovery from being used as a tool of oppression rather than as a legitimate inquiry into relevant issues.”). This balance is reflected in Federal Rule of Evidence 412, which bars the admission of “(1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim's sexual predisposition” in proceedings involving alleged sexual misconduct. Fed. R. Evid. 412.[3]
 
*3 Although Rule 412 is an evidentiary rule that addresses admissibility, its advisory committee notes recognize that, “[i]n order not to undermine the rationale of Rule 412[,]...courts should enter appropriate orders pursuant to Fed. R. Civ. P. 26(c) to protect the victim against unwarranted inquiries and to ensure confidentiality.” Fed. R. Evid. 412 advisory committee's note to 1994 amendment. To that end, the advisory committee notes direct that “[c]ourts should presumptively issue protective orders barring discovery unless the party seeking discovery makes a showing that the evidence sought to be discovered would be relevant under the facts and theories of the particular case, and cannot be obtained except through discovery.” Id. Courts now routinely recognize that Rule 412 limits the scope of discovery into a litigant's sexual history in a civil action. See T.C. on behalf of S.C. v. Metropolitan Government of Metro Nashville, 2018 WL 3348728, at *8-9 (M.D. Tenn. July 9, 2018) (collection of cases).
 
To be clear, however, Defendant is not directly inquiring about Plaintiff's sexual history or other intimate relationships generally. Rather, Defendant seeks discovery about Plaintiff's relationship with Ryan through a forensic examination of the cellphone (or other electronic device or devices) by which Plaintiff communicated with Ryan. To that extent, the Court finds Rule 412 to be less compelling. Nevertheless, considering Plaintiff's motion for a protective order under Rule 26(c) in light of Rule 412's instruction, the Court's first determination is whether information about Plaintiff's relationship with Ryan, which is the only information that Defendant seeks to discover, is relevant to the claims and defenses raised in this case.
 
The Court finds that the question of Plaintiff's relationship with Ryan is relevant. For instance, if Plaintiff was in a personal relationship with Ryan contrary to Plaintiff's denials during Defendant's investigation of her sexual harassment claims, that bolsters Defendant's contention that Plaintiff was not truthful during Defendant's investigation, which may support Defendant's defense that Plaintiff was discharged for legitimate, non-retaliatory reasons. Additionally, Plaintiff has also requested compensatory damages, including for, among other things, “past humiliation ... [and] worry” (Docket No. 1 at 5), and the extent to which Plaintiff was involved in a personal relationship with Ryan is also relevant to those damages claims.[4]
 
Further, Plaintiff already produced portions of text messages from Ryan without objection. While Rule 34 does not specify a consequence for failure to timely object to a request for production, the Advisory Committee notes to Rule 34 state “the procedure provided in Rule 34 is essentially the same as that in Rule 33, as amended ....” Fed.R.Civ.P. 34(b) advisory committee's note to 1970 Amendment. Rule 33(b)(4) provides in relevant part that “[a]ny ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Fed.R.Civ.P. 33(b)(4). Incorporation of the Rule 33(b)(4) waiver provision into Rule 34(b)(2)(C) is consistent with the usual rule that failure to make an objection in a timely manner forfeits the objection. Essentially, by providing parts of text messages Plaintiff admitted that the requested communications are relevant and discoverable or at least waived any argument to the contrary. Further, Plaintiff's refusal to provide the entire text messages also distinguishes this case from others upon which Plaintiff relies.
 
In the Tingle case, for example, the Court declined to allow a forensic examination only because there was insufficient evidence that the responding party had withheld information. Tingle v. Hebert, 2018 WL 1726667, at *7 (M.D. La. Apr. 10, 2018). In fact, the Tingle court cited with approval the propriety of a forensic examination when there is more than mere skepticism that a responding party has failed to produce information. Id. (citing Timms v. LZM, L.L.C., 657 Fed.App'x. 228, 229, n.1 (5th Cir. 2016)) (forensic examination of the plaintiff's phone was warranted because the plaintiff produced paper copies of text messages that were missing messages plaintiff was known to have). That is precisely the circumstance here. Plaintiff has selectively produced parts of text messages, while refusing to produce the entire contents of the text messages. Defendant is not simply speculating that Plaintiff is withholding information, that fact is undisputed.
 
*4 Similarly, in the John Crane Group case, the court declined to reconsider its order denying the requested forensic examination because inconsistencies in deposition testimony did not rise to a necessary level of withholding information. John Crane Group Corporation v. Energy Devices of Texas, Inc., 2015 WL 11112540, at *2 (E.D. Tex. Oct. 30, 2015). In weighing the utility of permitting a forensic examination against the inherent privacy concerns, the John Crane Group court considered “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.” Id. *1 (citing Klayman v. City Pages, 2014 WL 5426515 (M.D. FL Oct. 22, 2014). Those same factors were considered by the Areizaga court, although it, too, determined that, based on the particular facts and circumstances of that case, a forensic imaging was not warranted. Areizaga v. ADW Corporation, 2016 WL 9526396, at *3 (N.D. Tex. Aug. 1, 2016). Here, those factors weigh in favor of permitting the forensic examination. There is no dispute that Plaintiff is withholding information. Nor is there any dispute that Plaintiff is unwilling or unable to search for or produce the requested complete text messages between she and Ryan, despite having been asked for that information in discovery.[5]
 
In the Anthem case, the request for a forensic examination was denied because the requesting party had not sufficiently targeted its discovery requests before seeking access to the responding parties' computers. In re Anthem, Inc. Data Breach Litigation, 2015 WL 11505231, at *1 (N.D. Cal. 2016). That is not the case here. While it is correct that Defendant requested a forensic examination as part of its initial discovery, it did so because Plaintiff refused to produce communications between she and Ryan in connection with Defendant's investigation of her sexual harassment charges, a decision that Defendant contends justifies Plaintiff's termination under Defendant's internal policies. If Defendant had requested the forensic examination as its only attempt to obtain information from Plaintiff or in response to Plaintiff's production of the full contents of text messages, the Court's considerations might be different. But the Court is not deciding this issue in that hypothetical world. Rather, Defendant's insistence on the forensic examination comes only after Plaintiff refused to provide the entire text messages between she and Ryan. Plaintiff's refusal to produce this relevant, discoverable information warrants a limited forensic examination of her electronic communications.
 
Ultimately, as the cases cited by Plaintiff demonstrate, the determination here is a fact-driven one. Plaintiff has had ample opportunity to produce the entire text messages, which she has declined to do, even with protections offered by Defendant. The Court has considered the privacy concerns implicated by the requested forensic examination. Given the limited nature of the information requested by Defendant, its relevancy to the claims and defenses in this case, and Plaintiff's refusal to produce the information, the Court finds and concludes that a forensic examination is warranted and appropriate. Nevertheless, to address the inherent privacy concerns, the Court imposes the restrictions detailed below.
 
Within seven (7) days of the date of entry of this Order, Plaintiff must make her cellphone and any other electronic devices on which she communicated with Jared Ryan available to Defendant for forensic examination at Defendant's cost with the following restrictions:
 
*5 1. The forensic examiner may retrieve only communications between Plaintiff and Jared Ryan for the period of June 1, 2017 through Plaintiff's termination. The forensic examiner is prohibited from retrieving any other communications or information.
 
2. The forensic examiner is further prohibited from discussing or otherwise sharing any unretrieved information with any other person or entity, including Defendant and its counsel.
 
3. The forensic examiner is also prohibited from discussing or otherwise sharing any retrieved information with any person or entity other than counsel of record in this case, the parties (which for Defendant shall be authorized representatives), and any experts retained by either party for consultation or testimony in this case.
 
4. Production of information pursuant to this Order shall not impair Plaintiff's right to rely on Federal Rule of Evidence 412 in further proceedings or trial in this case.
 
Additionally, as stated above, Plaintiff's motion for an extension of the deadline to amend the pleadings or add parties (Docket No. 28) is GRANTED. The deadline for motions to amend or add parties is extended to February 21, 2020. All other case management deadlines and provisions found in prior orders and not modified herein remain in effect.
 
It is SO ORDERED.

Footnotes
The Court notes that Plaintiff's motion for an extension does not comply with Local Rule 7.01(a)(1) because it does not contain the required certification that the requested relief was discussed with opposing counsel and whether the relief is likely to be opposed. The Court will overlook Plaintiff's noncompliance this time but will not be inclined to do so in the future. Further, the Court exercises its discretion under Local Rule 7.01(b) to rule on the motion before expiration of the time for response.
Defendant also requested all documents and communications between Plaintiff and any current or former director, officer, agent, employee, or contractor of Prime Now. See Docket No. 19-4 at 1. However, that request is not before the Court in Plaintiff's motion.
Rule 412 reflects a determination that “prior sexual activity is of dubious probative value and relevance and is highly embarrassing and prejudicial” and can be “used to harass the prosecuting victim.” Bell v. Harrison, 670 F.2d 656, 658 (6th Cir. 1982). It “aims to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the factfinding process.” Id. In a civil case, evidence of past sexual conduct is admissible only if “its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim's reputation only if the victim has placed it in controversy.” Fed. R. Evid. 412(b)(2).
These are not exhaustive examples.
Neither Plaintiff's memorandum in support of her motion nor her reply adequately address Plaintiff's refusal to provide complete text messages between she and Ryan. Rather, Plaintiff distractedly discusses conduct of other male employees and she argues in generalities about the invasion of her right to intimate association that would result from the forensic examination. However, Defendant makes clear in its response that it is neither interested in nor seeking to inquire about Plaintiff's personal relationships generally. Only information about Plaintiff's relationship with Ryan is requested.