eDiscovery Daily Blog

• January 24, 2019

In Santana v. MKA2 Enterprises, Inc., No. 18-2094-DDC-TJJ (D. Kan. Jan. 8, 2019), Magistrate Judge Teresa J. James denied the defendant’s Motion to Compel regarding the defendant’s request for the plaintiff to produce all of his cellphones for inspection and copying.  Judge James did order the plaintiff to “produce complete copies of all responsive text messages to the extent they have not already been produced.”

Case Background

In this employment discrimination case where the plaintiff alleged he was discriminated against, retaliated against, and terminated because of his race, the parties were unable to resolve their disputes as to Request for Production No. 21, which stated:

“Produce all cellular telephones used by you from the date your employment with Defendant started to the present for purposes of inspection and copying.”

The plaintiff objected, stating that “this request seeks irrelevant information and is not proportional to the needs of this case. The request is unduly burdensome and invasive in light of the nature of the case—Defendant has shown no need for the production of Plaintiff’s cell phone.”

Although not the subject of the motion to compel, the defendant also requested that the plaintiff “produce a full and complete copy of all text messages between (Plaintiff) and Defendant and between (Plaintiff) and current or former employees of Defendant.”  The plaintiff objected to that request as well, stating that the request “seeks irrelevant information”.

Judge’s Ruling

Judge James stated that “Defendant’s RFP No. 21 is broad in scope, requesting production of all Plaintiff’s cell phones for inspection and copying, without any limitation on the data ultimately to be produced from the copy or image of the phone(s)” and observed that “Defendant sets out no protocol or process through which the data it deems responsive would be culled from the copy or image of the phone(s) and any unresponsive and/or privileged data removed or protected.”

Judge James referenced Advisory Committee Notes to Fed. R. Civ. P. 34(a):[8], which stated (in part): “Inspection or testing of certain types of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy… Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.”

Judge James also noted that “Defendant cites no cases involving the imaging of a cell phone and only one case in which a computer inspection and imaging was ordered” and (unlike that case), the plaintiff hadn’t shown any history of providing incomplete and inconsistent responses to production requests.  As a result, Judge James stated:

“The Court finds that Defendant’s RFP No. 21 is overly broad, unduly burdensome and not proportional to the needs and issues of this case. Defendant’s separate request for the narrowed scope of text messages also illustrates that Defendant has the ability to obtain relevant cell phone data through less invasive means. In accordance with Rule 34(a), the Court must guard against the undue intrusiveness that would result from the requested inspection and copying of Plaintiff’s cell phone(s). The Court will therefore sustain Plaintiff’s objections to RFP No. 21.”

Judge James did direct the plaintiff to “supplement his response to Request for Production No. 41 and produce complete copies of all responsive text messages to the extent they have not already been produced.”

So, what do you think?  Was the judge right or should she have compelled production of the cell phone?  Could the defendant have handled the situation differently?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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