eDiscovery Daily Blog
Defendant’s Wife Ordered to Turn Over iPhone for Examination: eDiscovery Case Law
In Brown Jordan International, Inc. et. al. v. Carmicle et. al., Consolidated Case No. 15-00037 (W.D.K.Y. Oct. 19, 2015), Kentucky District Judge Greg N. Stivers granted the plaintiffs’ expedited motion to compel the defendant’s wife to produce her iPhone for a forensic examination for information related to the case.
In this employment dispute that spawned a counter-suit which was eventually combined into a single consolidated case, the defendant produced his electronic devices and electronic storage for forensic examination. Based upon the review of those devices and sites, the plaintiffs came to believe that the iPhone of the wife of the defendant may contain information relating to the claims in the action. As a result, the plaintiffs issued a subpoena to the the wife of the defendant, requesting her iPhone for a forensic exam. She objected to the production of her iPhone and refused to produce it. So, after the parties were unable to come to an agreement regarding the forensic review of her iPhone, the plaintiffs filed an Expedited Motion to Compel.
With regard to the relevancy of her iPhone, Judge Stivers, noting that the forensic examination report of the defendant’s laptop found “an Apple iTunes backup file of Rashna’s iPhone, which contains some of the original Brown Jordan International screenshots”, stated “[i]n this case, the information sought from Rashna’s iPhone appears to be relevant to the claims asserted in the action and good cause exists.”
Judge Stivers then stated that “[t]he burden then shifts to Rashna ‘to establish that the material either does not come within the scope of relevance or is of such marginal relevance that the potential harm resulting from production outweighs the presumption in favor of broad disclosure’”, noting that it was a heavy burden. The defendant’s wife made the following arguments, each of which was addressed by Judge Stivers:
- The information does not exist on her iPhone: Judge Stivers rejected that argument, indicating that “it is impossible for the Brown Jordan Parties to refute it without a forensic examination of her iPhone, and issues of spoliation of evidence have been raised in this matter”;
- The plaintiffs already have that information: Judge Stivers indicated that he was “unpersuaded by this argument”, “in light of the potential spoliation issues and the forensic report”;
- Producing the iPhone would be inconvenient: Judge Stivers noted that the plaintiffs indicated that “the forensic examination can occur in as little as four hours and can be completed overnight”;
- She won’t have sufficient to review the results to assert any applicable privileges: Judge Stivers agreed to “modify the review period” to give her more time.
With her objections addressed, Judge Stivers ordered the wife of the defendant to produce her iPhone to be forensically examined and gave her nine days to complete the review of the documents collected from her iPhone.
So, what do you think? Should she have been compelled to produce the iPhone? Please share any comments you might have or if you’d like to know more about a particular topic.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
CloudNine empowers legal, information technology, and business professionals with eDiscovery automation software and professional services that simplify litigation, investigations, and audits for law firms and corporations.