Muy v. IBM Corp.
Muy v. IBM Corp.
2020 WL 13470562 (N.D. Fla. 2020)
November 13, 2020

Walker, Mark E.,  United States District Judge

GPS
Instant Messaging
Attorney-Client Privilege
Clawback
Photograph
Privacy
Waiver
Dismissal
Text Messages
Mobile Device
Video
Forensic Examination
Protective Order
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Summary
The court found that Plaintiff had waived attorney-client privilege in a set of text messages and emails stored on her cell phone, as she had not taken any reasonable steps to prevent disclosure. The court granted Defendants' motion to determine privilege and denied Plaintiff's motion to enforce the protective order. Defendants had violated Rule 26(b)(5)(B) but the court declined to consider sanctions.
MAILIN MUY, Plaintiff,
v.
INTERNATIONAL BUSINESS MACHINES CORPORATION, et al., Defendants
CASE NO.: 4:19cv14-MW/MAF
United States District Court, N.D. Florida
Filed November 13, 2020

Counsel

Oscar Monfort Price, IV, Nicholas William Armstrong, Price Armstrong LLC, Birmingham, AL, Ryan Blake Hobbs, Tallahassee, FL, for Plaintiff.
Douglas Lamar Kilby, James P. Judkins, Ausley McMullen, Tallahassee, FL, Josef Teboho Ansorge, Stephen Andrew Broome, Quinn Emanuel Urquhart Etc., LLP, Los Angeles, CA, for Defendants.
Walker, Mark E., United States District Judge

OMNIBUS ORDER ON PENDING MOTIONS

*1 There are four pending motions in this Florida Deceptive and Unfair Trade Practices Act case; namely, (1) Plaintiff's motion to dismiss, ECF No. 114, (2) Plaintiff's motion to enforce the protective order, ECF No. 115, (3) Defendant's motion for a determination of privilege and confidentiality, ECF No. 117, and (4) Plaintiff's motion to disqualify Defendant's counsel, ECF No. 132. Plaintiff has also filed a notice of conditional withdrawal of her motion for dismissal, ECF No. 121.
 
On November 13, 2020, this Court heard argument on these motions. For the reasons stated on the record, and memorialized below, Defendants' motion to determine confidentiality, ECF No. 117 is GRANTED; Plaintiff's motion to enforce the protective order, ECF No. 115, is DENIED; Plaintiff's motion to disqualify Defendants' counsel, ECF No. 132, is DENIED; and Plaintiff's motion to dismiss, ECF No. 114, is DENIED as moot. Before turning to this Court's reasoning, a brief summary of the relevant factual background is necessary.
 
I. BACKGROUND
The vast majority of the motions pending before this Court concern a single issue: did Plaintiff waive attorney-client privilege in a set of text messages and emails between Plaintiff and her counsel stored on Plaintiff's cell phone? The relevant background follows.
 
Plaintiff's case centers on her allegations that Defendants' the Weather Channel App (TWC App) tracked and sold users' location data without their knowledge or permission. See ECF No. 74 ¶¶ 2–8. After roughly a year of motion practice, Defendants answered Plaintiff's Third Amended Complaint, and the case preceded to discovery.
 
As part of that discovery, Defendants served their first request for production on Plaintiff. Relevant here, Defendants requested (1) Plaintiff's “mobile phone and any other ... devices” and (2) “[a]ll DOCUMENTS and COMMUNICATIONS RELATED TO the TWC App.” ECF No. 117-1, at 25. In response to Defendants' first request, Plaintiff agreed to “produce or provide for inspection the data and information relevant to this lawsuit from her iPhone following an agreement between the parties ... that protects from production any personal or private data, information or images that have no relevance to this lawsuit.” Id. at 32. In response to Defendants' second request, Plaintiff stated that she did “not understand what this request seeks beyond what is sought in” the first request. Id. at 33. Plaintiff also objected “that this request potentially seeks documents protected by the Attorney-Client Privilege.” Id. “Subject to” that objection, Plaintiff stated that she did “not believe that she has any responsive documents beyond the data and information on her iPhone that she will produce pursuant to the conditions explained in response to the” first request. Id.
 
Due to COVID-19, the parties agreed that Plaintiff would produce her cell phone by having her expert, John Sawicki, create a forensic image of the phone, which he would then mail to Defendants' experts. In discussing this production, Plaintiff's counsel stated that the parties would “need to reach an agreement that protects the privacy of information on the device that is wholly unrelated to the issues in this case (pictures, videos, text messages, etc.).” Id. at 103. Defendants' counsel responded that they “look[ed] forward to receiving [Plaintiff's] proposal regarding” any “pictures, videos, and text messages.” Id.
 
*2 Apparently, the parties never reached an agreement. And without any agreement, Sawicki imaged the phone and mailed the image to Defendants. Afterwards, Plaintiff's counsel emailed Defendants' counsel, stating: “I understand you will have the data from Mrs. Muy's phone soon. Pursuant to the protective order, Plaintiff designates as confidential all emails, pictures, text messages and other communications through any messaging application, geolocation data and browsing history.” Id. at 106.[1]
 
Defendants received the image of Plaintiff's phone at the end of August. On September 1, 2020, this Court granted a motion to compel Plaintiff's deposition. According to Defendants, on September 30, 2020, they discovered a series of text messages and emails between Plaintiff and her counsel on their copy of Plaintiff's phone. On October 1, 2020, Defendants emailed Plaintiff's counsel, informing them that “Plaintiff may have inadvertently produced privileged material with the forensic image of her mobile device.” ECF No. 132-2, at 13. Plaintiff's counsel responded that “[t]he system selected improperly accessed this. Obviously, this disqualifies all defense counsel who have seen this.” ECF No. 117-1, at 111. The next day, Plaintiff's counsel demanded that Defendants destroy all copies of the messages at issue. ECF No. 115-1. Defendants refused, stating instead that they had “sequestered” the messages and intended to file them under seal with this Court in a motion to determine privilege. Id.
 
Defendants filed that motion on October 5, 2020, requesting that this Court rule that Plaintiff had waived any privilege in the text messages and emails. ECF No. 117. The same day, Plaintiff filed a motion to enforce protective order, requesting that this Court order Defendants to destroy the texts and emails pursuant to the protective order previously entered by this Court. ECF No. 115. Plaintiff also filed a motion to voluntarily “dismiss her claims with prejudice, without prejudice to the claims of the putative class.” ECF No. 114, at 1. In that motion, Plaintiff asks this Court to dismiss her claims because she cannot meet her obligations as a class representative—such as sitting for a deposition.
 
Defendants responded to Plaintiff's motion to dismiss, arguing that the text messages subject to the motion to determine privilege raise “grave questions about (1) Plaintiff's standing to pursue her claims and adequacy as a class representative, (2) the factual basis for this lawsuit, and (3) the conduct of Plaintiff's counsel.” ECF No. 120, at 2. Accordingly, Defendants request that this Court “dismiss Plaintiff's claim with prejudice as a final adjudication on the merits such that Defendants are ‘prevailing parties’ ” and “retain jurisdiction to determine whether an award of fees and/or sanctions is appropriate.” Id. at 6.
 
Plaintiff then filed a notice of conditional withdrawal of her motion for dismissal, stating that “should the Court be inclined to attach a large attorney's fee award or other onerous conditions to the voluntary dismissal of Plaintiff's claims, Plaintiff will withdraw her motion for voluntary dismissal.” ECF No. 121, at 1. Finally, Plaintiff also filed a motion to disqualify Defendants' counsel, asking this Court to disqualify Defendants' counsel because they had viewed privileged communications. ECF No. 132. Both parties agree that the privilege issue is fully briefed and ripe for decision—and that this Court need not hold an evidentiary hearing.
 
II. ANALYSIS
*3 Whether the disputed text messages and emails are privileged turns on two core issues. First, did Plaintiff waive any privilege by producing the text messages at issue. Second, if Plaintiff did not waive attorney-client privilege, are the texts subject to the crime-fraud exception. Because this Court finds that Plaintiff waived any privilege, it need not address Defendants' crime-fraud argument.
 
Federal Rule of Evidence 502(b) provides that the inadvertent disclosure of protected material does not waive privilege when “(1) the disclosure is inadvertent; (2) the holder of the privilege took reasonable steps to prevent disclosure; and (3) the holder took reasonable steps to rectify the error.” “All three elements must be met” and “[t]he disclosing party bears the burden of proving that the elements ... have been met.” Walker v. GEICO Indem. Co., No. 615CV1002ORL41KRS, 2016 WL 11578803, at *6 (M.D. Fla. July 11, 2016). Because this Court finds the second element dispositive, it begins—and ends—its analysis there.
 
In deciding whether the disclosing party took reasonable steps to prevent disclosure, “courts consider several factors, including the methodology of precautions used to review for privileged documents, the scope of discovery, the number of documents to be reviewed, and any time constraints for production.” Thermoset Corp. v. Bldg. Materials Corp. of Am., No. 14-60268-CIV, 2015 WL 1565310, at *8 (S.D. Fla. Apr. 8, 2015). These factors are neither dispositive nor exclusive and the “analysis should be flexible and should be applied on a case by case basis.” Amobi v. D.C. Dep't of Corr., 262 F.R.D. 45, 54 (D.D.C. 2009).
 
Here, Plaintiff identifies three steps she took to prevent disclosure; namely, (1) she “made clear in her responses that she sought to protect private information from disclosure on her phone,” (2) she “negotiated a protective order to protect against the inadvertent disclosure and retention of privileged information,” and (3) she placed the phone “in the custody of an expert.” ECF No. 127, at 7. Plaintiff makes no argument that her counsel made any attempt to review the phone's contents.
 
Plaintiff further argues that she did not produce the disputed information. Instead, Plaintiff provided the phone for inspection under Rule of Civil Procedure 34(a). Due to the pandemic, Defendants elected to inspect the phone remotely, using a forensically imaged version of Plaintiff's cell phone. But, Plaintiff argues, Defendants went further than what Plaintiff agreed to by inspecting and copying the text messages at issue here. At any rate, argues Plaintiff, failing to remove two text message strings from the overwhelming amount of data on Plaintiff's phone cannot rise to the level of a knowing waiver.
 
Defendants argue that “during the more than one year that Plaintiff's counsel and expert had custody of Plaintiff's phone, Plaintiff's counsel took no steps to review its contents” and that Plaintiff took no other steps to protect her privileged communications. ECF No. 143, at 15. Thus, Defendants argue, under rule 502, Plaintiff has waived any applicable privilege.
 
Stated broadly, Plaintiff's argument appears to be that she agreed to produce her phone so that Defendants could extract data about the TWC App itself, but did not give Defendants permission to go further. Defendants disagree, they argue that—without conducting any review—Plaintiff produced the entire phone, and everything contained within was fair game.
 
*4 Were Plaintiff's version true, Plaintiff may well have taken reasonable steps. That version of events, however, is belied by the evidence before this Court. Plaintiff did not agree to produce the TWC App data alone. Plaintiff also responded to Defendants' second request for production by stating that, to the extent Plaintiff possessed any communications responsive to that request, they were also on the phone. Further, in designating Plaintiff's text messages confidential, Plaintiff's counsel never discussed privilege. Indeed, under this Court's protective order, material designated as confidential can be used, but only in this case and any related appeal. ECF No. 104, at 1. It is difficult to understand then, how designating text messages as confidential is the same as claiming they are privileged. Plus, the protective order does not contain a clawback provision, which could supplant Rule 502(b)'s waiver standard.
 
In short, and as Plaintiff's counsel acknowledged at the hearing on this issue, the only concrete step she took to prevent disclosure was to object in her response to Defendants' request for production. Plaintiff did not, for example, negotiate a clawback agreement, discuss privilege in any email exchange with Defendants' counsel, seek an additional court order, or make any attempt to review the phone prior to producing it. While Rule 502(b) gives this Court the power “to round up the animals and put them back in the barn,” Plaintiff must first show that she “took reasonable efforts to keep the barn door closed.” Amobi, 262 F.R.D. at 55. In other words, “[t]here can be no reasonable efforts, unless there are efforts in the first place.” Id. Here, Plaintiff made no effort, and this Court therefore finds that Plaintiff has waived any privilege she might otherwise have claimed in the disputed texts and emails.[2]
 
Because this Court finds that Plaintiff has waived any privilege, her motion to enforce the protective order necessarily fails. Likewise, as Plaintiff's counsel acknowledged, her motion to disqualify also fails because she has waived privilege.
 
That leaves only Plaintiff's motion to dismiss. Because Plaintiff has filed a notice of withdrawal, this Court finds that Plaintiff's motion is moot, and is due to be denied on that ground.
 
Accordingly,
 
IT IS ORDERED:
 
1. Defendants' motion to determine privilege, ECF No. 117, is GRANTED. Plaintiff has waived any privilege that she might have otherwise claimed in the texts and emails at issue in Defendants' motion.
 
2. Plaintiff's motion to enforce protective order, ECF No. 115, is DENIED.
 
3. Plaintiff's motion to disqualify Defendants' counsel, ECF No. 132, is DENIED.
 
4. Plaintiff's motion to dismiss, ECF No. 114, is DENIED as moot.
 
SO ORDERED on November 13, 2020.

Footnotes
The parties had previously negotiated a protective order, which this Court entered at the beginning of August. See ECF No. 104.
That said, as this Court explained on the record, Defendants are not blameless. Under the terms of this Court's protective order, a party “must not use or disclose” inadvertently produced privileged material “until the claim [of privilege] is resolved.” ECF No. 104 § 11.1. Moreover, Federal Rule of Civil Procedure 26(b)(5)(B) prohibits a receiving party from reviewing or using the material at issue once the producing party has made a claim of privilege. EEOC v. George Washington Univ., No. 17-CV-1978 (CKK/GMH), 2020 WL 6504573, at *4 (D.D.C. Nov. 5, 2020). Despite these prohibitions, that is exactly what Defendants did here—they used the text messages at issue to oppose Plaintiff's motion to dismiss. “Many courts have held that a violation of Rule 26(b)(5)(B) can be the basis for sanctions.” Id. at *15 (collecting cases). However, as this Court stated on the record, it will not consider sanctions on its own motion.