Pendelton v. First Transit, Inc.
Pendelton v. First Transit, Inc.
2020 WL 10787493 (E.D. Pa. 2020)
July 10, 2020
Diamond, Paul S., United States District Judge
Summary
The court granted Plaintiff's Motion for Protective Order in part, ordering Plaintiff to provide Defendant with minimally redacted copies of all the records requested, with the time, date, location, and duration of the communication or internet usage visible. Plaintiff must also provide a log describing each redaction and file all the requested records with the Court, completely unredacted, and under seal.
Steven PENDELTON, on behalf of himself and all others similarly situated, Plaintiff,
v.
FIRST TRANSIT, INC., Defendant
v.
FIRST TRANSIT, INC., Defendant
Civ. No. 20-1985
United States District Court, E.D. Pennsylvania
Filed July 10, 2020
Counsel
Anna Ceragioli, James B. Zouras, Paige L. Smith, Ryan F. Stephan, Teresa M. Becvar, Stephan Zouras LLP, Chicago, IL, Kelly Anne Burgy, Law Offices of Peter T. Nicholl, Baltimore, MD, Scott M. Pollins, Pollins Law Firm, Wayne, PA, David J. Cohen, Stephan Zouras LLP, Philadelphia, PA, for Plaintiff.Kimberly D. Saginario, Marc D. Esterow, Matthew J. Hank, Max O. Bernstein, Uchenna J. Osagiede, Wendy Sue Buckingham, Michael R. Romeo, Littler Mendelson, P.C., Philadelphia, PA, for Defendant.
Diamond, Paul S., United States District Judge
ORDER
*1 Plaintiff and putative class members are paratransit drivers who allege they were forced to work “off the clock” without pay. (Doc. No. 1.) Defendant maintains that Plaintiff and putative class members' cell phones demonstrate that contrary to their allegations, they were not working during their breaks. (Doc. No. 26, Exs. A, B, D, E; Doc. No. 42, Exs. A-D.) Defendants have thus requested that Plaintiff produce:
[1.] text messages [Plaintiff] sent or received on any cell phones, tablets, or hand-held communication devices during that time period; [2.] a log of phone calls [Plaintiff] made or received on any cell phones or hand-held communication devices during that time period; [3.] records of [Plaintiff's] social media activity (including, but not limited to, Facebook, Instagram, Twitter, and LinkedIn) during that time period; [4.] records of any purchases [Plaintiff] made from online retailers, such as Amazon, during that time period; [5.] [Plaintiff's] internet browsing history on all internet browsers (located on any cell phones, tablets, hand-held communication devices, or otherwise) during that time period; and [6.] all pictures or videos taken on any cell phones or hand-held communication devices during that time period.
They have also subpoenaed Plaintiff and the putative class members' cell phone service providers, requesting:
1. [c]all logs, call location information, and all other CPNI (Customer Proprietary Network Information ... 2. Text-message, SMS, and MMS logs ... 3. Latitude/Longitude data, GPS data, cell site location information (CSLI) and all other geolocation data ... 4. IP addresses, data-use history, browsing history, mobile application history, and all other usage information ... 5. All information relating to cell towers to which ... [Plaintiff and putative class members] connected, and when each such connection occurred.
(Id.) Plaintiff has filed two Motions seeking protective orders against Defendant's discovery requests. (Doc. Nos. 32, 42.)
Defendant sought similar discovery in a prior case, which presented identical claims by the same plaintiff's counsel against the same Defendant. Stewart v. First Transit, Inc., 18-cv-3768-PD (Dec. 30, 2019). In Stewart, Defendant sought cell phones and hand-held communication devices for a forensic examination of all GPS data, call logs, and text messages for dates when Plaintiffs had ‘off-the clock’ breaks during their shifts as paratransit drivers while working for Defendant.” (Id. at Doc. No. 78.) I ordered the plaintiff to provide the requested records with redactions, but denied Defendant's request for a forensic examination. (Id.) I also directed the plaintiff “to provide me with unredacted copies of the same data, to be filed under seal.” (Id.)
First Transit now seeks an expanded list of records from both Plaintiff and Plaintiff's cell provider. (Doc. No. 38. Ex. 3.) Defendant is concerned that Plaintiff may over-redact the phone records, or withhold otherwise discoverable documents. (Id.) It thus directed the subpoenas at Plaintiff and putative class member's cell phone service providers. Defendant argues that directly subpoenaing the service providers “is far more cost-effective than employing a forensic expert to image [Plaintiff's] phone, analyze the data, and extract it for production.” (Id.) Defendant has thus subpoenaed cell service providers as an alternative to the forensic examination it requested in Stewart.
*2 Although the requested discovery is plainly relevant, Plaintiff's have a privacy interest in the substance of their text message communications and internet usage. See Henson v. Turn, Inc., No. 15-CV-01497-JSW (LB), 2018 WL 5281629, at *5 (N.D. Cal. Oct. 22, 2018) (citing Tingle v. Hebert, No. 15-626-JWD-EWD, 2018 WL 1726667, at *7–8 (M.D. La. Apr. 10, 2018); Hespe v. City of Chicago, No. 13 C 7998, 2016 WL 7240754, at *3 (N.D. Ill. Dec. 15, 2016); Areizaga v. ADW Corp., No. 3:14-cv-2899-B, 2016 WL 9526396, at *3 (N.D. Tex. Aug. 1, 2016); In re Anthem, Inc. Data Breach Litig., No. 15-md-02617 LHK (NC), 2016 WL 11505231, at *1–2 (N.D. Cal. Apr. 8, 2016)); see also Eash v. Cty. of York, Pennsylvania, No. 1:19-CV-141, 2020 WL 1503666, at *5 (M.D. Pa. Mar. 30, 2020).
Under Rules 45 and 26 in determining a request for protective relief, I must “balance several competing factors: (1) relevance, (2) need, (3) confidentiality, and (4) harm.” S.R. by & through next friend Rosenbauer v. Pennsylvania Dep't of Human Servs., No. 20-MC-00002, 2020 WL 2539199, at *2 (E.D. Pa. May 19, 2020); see also Fed. Trade Comm'n v. Thomas Jefferson Univ., No. CV 20-01113, 2020 WL 3034809, at *2 (E.D. Pa. June 5, 2020) (citing In re Domestic Drywall Antitrust Litig., 300 F.R.D. 234, 239 (E.D. Pa. 2014)).
The same reasoning that I applied in Stewart applies here. I will grant Plaintiff's Motion for Protective Order in part as to the subpoenas to directed to the cell phone service providers only—without prejudice to Defendant's right to seek those records in the future. I will further order Plaintiff to provide Defendant with minimally redacted copies of all the records Defendant requests. In each instance, the time, date, location, and duration of the communication or internet usage shall be visible. Plaintiff shall provide Defendant with a log, describing each redaction he has made. Plaintiff shall also file a copy of the log with the Court. Plaintiff shall file all the requested records with the Court, completely unredacted, and under seal. Plaintiff shall not redact locational data, or social media posts (which are by their nature public) in any way. In the event that it appears that Plaintiff has over-redacted or withheld any discoverable information from Plaintiff, Defendant may seek the complete, unredacted records. Defendant may also renew its discovery requests in the event that the substance of Plaintiff's (and putative class members') cell phone communications is put at issue.
AND NOW, this 10th day of July, 2020, it is hereby ORDERED as follows:
1. Plaintiff's Motion for Protective Order is GRANTED as to all subpoenas directed to Plaintiff and putative class member's cell phone service providers.
2. This Order is without prejudice to Defendant's right to seek this discovery in the future.
3. Plaintiff shall PRODUCE all the requested records with minimal redactions. In each instance, the time, date, location, and duration of the communication or internet usage shall be visible.
4. Accompanying his production Plaintiff shall PROVIDE a log, recording each of the redactions he has made. Plaintiff shall also submit a copy of this log to the Court.
5. Plaintiff shall FILE under seal all of the requested records in unredacted form with the Court.
*3 AND IT IS SO ORDERED.