Don’t Go For Forensic Examination of Cell Phones without Proportional Discovery Requests

In a case over text messages that allegedly violated of the Telephone Consumer Protection Act of 1991 (the “TCPA”), the Defendant sought the forensic examination of the Plaintiff’s cell phone because she deleted the text messages. Ramos v. Hopele of Fort Lauderdale, Ltd. Liab. Co., 2018 U.S. Dist. LEXIS 44327, at *2 (S.D. Fla. Mar. 19, 2018).

The Defendants did not limit the proposed forensic examination by search term, date, or identity of the sender or receiver of the text messages. While call logs of text messages received and screenshots were produced, the Defendant claimed a forensic examination would produce metadata that would have a “a wealth of additional discoverable electronic and forensic data.” Ramos, at *3.

Many judges are very concerned about the intrusiveness of imaging electronic devices. Ramos, at *5-6. In weighing the inherent privacy concerns against the utility of the information on the phone, the Court also considered the scope of the requested inspection and the relevance of the information to the claims and defense in the lawsuit. Ramos, at *6.

The Defendant wanted a forensic examination because the Plaintiff deleted the text messages. The Court explained the deletion of the text did not appear relevant to the lawsuit, especially since the Defendant admitted in discovery they had texted the Plaintiff on multiple dates. Ramos, at *6. As such, this was not a disputed fact and a forensic examination was not required to prove or refute whether a text message had been sent. Ramos, at *6-7.

The Court rejected the argument an exam was needed to prove the Plaintiff consent to providing her phone number, because the date the Plaintiff made a purchase at the Pandora store had been established. The Defendant further claimed the exam would should the Plaintiffs activities before she received the text message, which the Defendants claimed was needed for its defense of an absence of any injury-in-fact. Ramos, at *8. However, prior case law has held that an unsolicited one-page fax advertisement was an injury-in-fact under the TCPA. Id.

There was another large issue with the forensic examination: the Defendant put no limited on the scope of the investigation.

The Court held the forensic examination was not tailored to find relevant information, proportional to the needs of the case, or took Plaintiff’s privacy concerns into consideration.

Bow Tie Thoughts

There are times when a forensic examination of a cell phone is highly appropriate and relevant to a lawsuit. However, that does not give adverse parties the license for a free for all in someone’s phone. Requests still have to be for relevant and proportional information. Moreover, no one in their right mind would want a forensic report with 60,000 text messages to review from several dozen senders. Who are the relevant people in the lawsuit? What are the date ranges? Subject matter? Just because people have handheld computers that are phones does not mean we hit the block button on Rules 1 or 26(b)(1).

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.