*1 This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.

Now before the Court is Deponent's [Sharles Johnson's] Objection to Request for Forensic Examination of Cellular Device (“Objection”) [Doc. 58], Defendant's Motion to Compel Electronic Inspection of Deponent Sharles Johnson's Phone (“Motion to Compel”) [Doc. 59], Defendant's Motion for Enlargement of Time to Complete Discovery Deposition of Sharles Johnson with Forensic Examination of Cellular Telephone or Other Electronic Device [Doc. 60], and Defendant's Amended Motion for Enlargement of Time to Extend Portions of Discovery Deadlines (“Amended Motion”) [Doc. 62].[1] In light of Defendant's Amended Motion [Doc. 62], the Court DENIES AS MOOT Defendant's original motion [Doc. 60]. For the reasons explained below, the Court GRANTS the Deponent's Objection [Doc. 58], DENIES Defendant's Motion to Compel [Doc. 59], and GRANTS IN PART Defendant's Motion for Enlargement of Time [Doc. 62].

I. BACKGROUND

On December 1, 2023, Defendant filed a Notice to Take Deposition of Sharles Johnson (“Deponent”), a non-party in this case [Doc. 51], setting his deposition for December 18, 2023. On December 5, 2023, Defendant filed a proof of service, showing that it served the Deponent with a subpoena duces tecum [Doc. 55]. The subpoena duces tecum seeks as follows:

[Id. at 4]. It also includes a “Protocol for Electronically Stored Information (ESI)” [Id. at 5–6].

On December 15, 2023, Deponent filed his Objection [Doc. 58]. While he does not object to Defendant taking his deposition, Deponent “objects to the inspecting, copying, testing, or sampling any or all materials on his cell phone or to producing electronically stored information” [Id. at 1]. Deponent claims that a forensic examination of his cellular phone “is not necessary and will be a particularly intrusive violation of privacy and court strategy” in light of his own pending federal case against Defendant [Id.]. He claims that he has provided emails for discovery when requested and that he “is still willing to provide text message documentation and whatever other documents that are relevant to this case” [Id.]. He states that he “has not obstructed the discovery process in any way, so there is no justification for this intrusion” [Id.]. In addition, the Deponent asserts Defendant's request to produce text messages between him and Plaintiff from November 7, 2023—the day that Defendant took Plaintiff's deposition—seeks irrelevant information. The Deponent claims that such information is not relevant or proportional to the needs of this case but states that he is willing to produce “communication[s] about the situation [P]laintiff alleges regarding the comments made by defense[ ] counsel the day of [P]laintiff[']s deposition that are the basis of the motion[ ] for sanctions” [Id.].[2] Deponent also states that Defendant can get the same documents from Rod Crockett.[3] Deponent outlines his distrust of Defendant and claims that he has personal matters on his cell phone (e.g., communications about his other federal court case against Defendant as well as notes and transcripts regarding a book that he is writing about Defendant). The Deponent requests that the Court deny Defendant's request for a forensic examination of his cellular phone.

*2 In response to the Objection, Defendant filed its Motion to Compel [Doc. 59], pursuant to Rule 37 of the Federal Rules of Civil Procedure. Defendant states that Plaintiff filed a motion for sanctions “on November 20, 2023, which necessitated a request of all recordings, videos, and telephone call records made or received on November 7, 2023” [Id. at 2]. In addition, during Deponent's deposition, Defendant claims that “it became clear that [he] may have in his possession text messages, phone calls, and other electronic communication that the Plaintiff allegedly no longer has access to” [Id. (citation omitted)]. Given that Plaintiff no longer has access to these text messages, Defendant claims that it “is well within its rights to ask for a forensic examination of the Deponent's cellular device” [Id. at 3]. Defendant contends that relevancy is not a valid objection[4] and that there is no privilege or protection that prevents it from being able to forensically examine the Deponent's cell phone. Defendant states that the subpoena duces tecum sets forth the ESI protocol that “puts the information to be searched for in the hands of a neutral third party” [Id.]. Defendant states that it would like for the forensic examination to occur during the December 18 deposition but notes that in light of the Objection, it will proceed with the deposition and reconvene it should the Court rule in its favor [Id. at 4].

Defendant also filed its Amended Motion [Doc. 62], which seeks an extension of the discovery deadline to (i) complete the discovery deposition of the Deponent, including the forensic examination of his cellular telephone, and (ii) complete all necessary examination related to Defendant's Second Set of Interrogatories and Request for Production of Documents and/or Things, Including Electronically Stored Information (“ESI”) Propounded to Plaintiff.[5] Defendant seeks an extension of the discovery deadline until January 31, 2024 “solely for those two activities” [Id. at 1].

II. ANALYSIS

The Deponent has objected to Defendant's subpoena duces tecum seeking a forensic examination of his cellular phone, and Defendant has moved to compel the forensic examination. Rule 45 of the Federal Rules of Civil Procedure “does not list irrelevance or overbreadth as reasons for quashing a subpoena. Courts, however, have held that the scope of discovery under a subpoena is the same as the scope of discovery under Rule 26.” Hendricks v. Total Quality Logistics, LLC, 275 F.R.D. 251, 253 (S.D. Ohio 2011) (quoting Barrington v. Mortage IT, Inc., No. 07-61304-CIV, 2007 WL 4370647, at *3 (S.D. Fla. Dec. 10, 2007)). Federal Rule of Civil Procedure 26(b)(1) provides as follows:

Fed. R. Civ. P. 26(b)(1).

With respect to forensic examinations, courts have recognized “the privacy interests at stake in forensic imaging of personal electronic devices[.]” United States v. Murray, No. 3:18-CR-30018-MGM-1, 2019 WL 1993785, at *5 (D. Mass. May 6, 2019) (citations omitted). While “forensic imaging is not uncommon in the course of civil discovery[,]” John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008)(citation omitted), “[c]ourts have been cautious in requiring the mirror imaging of computers where the request is extremely broad in nature and the connection between the computers and the claims in the lawsuit are unduly vague or unsubstantiated in nature.” Balboa Threadworks, Inc. v. Stucky, No. 05–1157–JTM–DWB, 2006 WL 763668, at *3 (D. Kan. March 24, 2006). And here, the Court finds Defendant's request is extremely broad in nature. The subpoena duces tecum contains no subject matter but simply seeks “[a]ny and all text messages, instant messages, messages from messenger applications, email, or other indicia of communication” between the Deponent and various other individuals, including Plaintiff, for over two years [Doc. 59 p. 2].

*3 Defendant states that it needs the forensic examination because Plaintiff filed a motion for sanctions; however, the Court denied this motion on November 21, 2023 [See Doc. 47].[6] Defendant also states that Plaintiff testified that he does not believe his cell phones contains certain text messages exchanged with the Deponent. During Plaintiff's deposition, defense counsel asked Plaintiff about text messages exchanged with the Deponent that appear to relate to the allegations of this case [See e.g., Doc. 59-1 p. 7 (“So you just out of the blue said to your dad, Grabbing my pec and pinching my nipple walking through the halls?”)]. Plaintiff did not have the complete exchange of text messages [See id. at 7–10]. In his Objection, however, the Deponent states that he is “willing to provide text message documentation and whatever other documents that are relevant to this case” [Doc. 58 p. 1]. The Court therefore declines to order a forensic examination of Deponent's cellular phone but ORDERS the Deponent to produce the text messages referenced in Plaintiff's deposition on or before January 10, 2024. After Defendant reviews these text messages, to the extent Defendant believes a second deposition of Deponent is warranted, it may file an appropriate motion.

III. CONCLUSION

For the reasons explained above, the Court GRANTS the Deponent's Objection to Request for Forensic Examination of Cellular Device [Doc. 58], DENIES Defendant's Motion to Compel Electronic Inspection of Deponent Sharles Johnson's Phone [Doc. 59], DENIES AS MOOT Defendant's Motion for Enlargement of Time to Complete Discovery Deposition of Sharles Johnson with Forensic Examination of Cellular Telephone or Other Electronic Device [Doc. 60], and GRANTS IN PART Defendant's Amended Motion for Enlargement of Time to Extend Portions of Discovery Deadlines [Doc. 62]. The Court DIRECTS the Clerk's Office to mail a copy of this Memorandum and Order to Sharles Johnson at his address shown in [Doc. 59 p. 5] and to mail and email a copy to Plaintiff at shaqueajohnson@gmail.com.

IT IS SO ORDERED.

The Court notes that Defendant's Motion to Compel [Doc. 59] and its Amended Motion [Doc. 62] are not ripe. See E.D. Tenn. L.R. 7.1(a). In light of the December 27, 2023 discovery deadline, the Court will expeditiously address these matters. See E.D. Tenn. L.R. 7.2 (“Under exceptional circumstances, the Court may act upon a motion prior to the expiration of the response time.”)

The Deponent appears to be referencing Plaintiff's Motion for Sanctions [Doc. 57]

The Deponent claims that Rod Crockett is a defendant in this lawsuit, but he is not.

Defendant states, “As the Court advised the Plaintiff during his deposition, relevancy is not a valid objection to a means of discovery” [Doc. 59 p. 3]. Defendant misconstrues the Court's statement. During Plaintiff's deposition, he refused to answer questions based on relevancy and the Court directed him to answer the questions as relevancy was not a basis to refuse to answer the question posed [Doc. 64-1].

On December 27, 2023, Defendant filed a Motion to Compel Plaintiff's Responses to Defendant's Second Set of Interrogatories and Request for Production of Documents and/or Things, Including Electronically Stored Information (ESI) [Doc. 66]. This motion is not ripe. The Court will address this motion and any further extension of the discovery deadline at a later date.

The Court notes that Plaintiff has filed another Motion for Sanctions [Doc. 57], which is currently pending. In his motion, he states that he heard defense counsel say disparaging things about him and that he has full capability of proving it [Id. at 4]. But as Defendant notes, Plaintiff has not produced any evidence to support this allegation [Doc. 63 p. 6].