A multi-part update on the discovery challenges posed by the proliferation and popularity of smartphones and other mobile devices
In “Data on the Move,” we discussed new usage data, new evidence of evidence, and new technology news related to mobile devices in eDiscovery. In “A Few Recent Cases,” we began our review of recent mobile device cases. In this Part, we continue that review.
As we noted in the last Part, the frequency with which cases have had to address mobile device issues has steadily increased over the past few years. From preservation obligations, to proportionality challenges, to privacy concerns, mobile devices have become a discovery battleground. In this Part, we continue our chronological review of an assortment of those cases to see what additional guidance can be gleaned from them.
In Gould v. Farmers Insurance Exchange, No. 4:17 CV 2305 RWS (E.D. Mo. Aug. 30, 2018), the plaintiff was attempting to bring a class action against the defendants for marketing their products via unsolicited text messages in violation of the Telephone Consumer Protection Act (TCPA). During discovery, the plaintiff attempted to subpoena relevant records from non-party insurance agents including “phone numbers of potential customers to which text messages were sent” and “the content of those text messages.” When the agents did not comply with the subpoenas, the plaintiff filed a motion to compel.
The non-party insurance agents opposed the motion to compel on a few grounds, the primary one of which was that complying “would violate their Fifth Amendment Right against self-incrimination” because production of the text messages could show violations of the TCPA. As the Judge explained, however, the privilege against self-incrimination does not apply to documents just because their contents may be incriminating:
If the mere possession, control, or authentication of the documents tends to incriminate the producing party, then the privilege may apply. However, where the documents themselves are incriminating, but their possession, control, and authenticity does not incriminate, the privilege would not apply. [internal citation omitted; emphasis added]
The case of Ramos v. Hopele of Fort Lauderdale, LLC, Case No. 17-62100-CIV-MORENO/SELTZER (S.D. Fla. 2018) concerned marketing text messages that allegedly violated the Telephone Consumer Protection Act of 1991. During discovery, the defendant moved to compel a forensic examination of the plaintiff’s mobile phone. The plaintiff objected on several grounds, among them that it was an invasion of privacy and was disproportionate to the needs of the case.
The Court ultimately concluded that the requested forensic examination was (a) “not tailored to obtain information that is relevant to any claim or defense in this case” and (b) “not proportional to the needs of the case or to Plaintiff’s privacy concerns” [emphasis added]. In reaching the conclusion, the Court emphasized that “Courts in this District are mindful of the potential intrusiveness of forensic imaging of electronic devices” and that the Court “should assess the Plaintiff’s legitimate privacy concerns against [the defendant’s] purported need for the requested discovery” [emphasis added].
Additionally, the Court noted that the examination sought was “not limited in any way, whether by search term, date, or identity of the sender or receiver” and that the defendant’s arguments were “somewhat vague as to what information it would expect to obtain through a forensic examination,” demonstrating again the importance of specificity in proportionality arguments [emphasis added].
In Henson v. Turn, Inc., Case No. 15-cv-01497-JSW (LB) (N.D. Cal. Oct. 22, 2018), the plaintiffs were bringing a data-privacy class action alleging improper tracking of devices using “zombie cookies.” During discovery, the defendant sought to have the plaintiffs produce their mobile devices for imaging (or produce forensic images of the devices), produce the “full web browsing history from their devices,” and produce “all cookies stored on or deleted from their devices.” The plaintiffs opposed these requests and proposed more narrowly-tailored alternatives to each.
The Magistrate Judge began her analysis by emphasizing how central mobile devices have become to our lives and, consequently, how much private data they may now contain:
Users increasingly use a single mobile device – a smartphone or a tablet – for their online activities, including web browsing, reading the news, listening to radio content, accessing their banking information and managing their finances, shopping online, using GPS for directions and traffic updates, communicating over email and social networks, and reading sites like WebMD to assess their medical condition. [footnote omitted]
Largely because of these privacy concerns (and because narrower alternatives were available), the Magistrate Judge went on to conclude that the discovery requests in dispute were disproportional to the needs of the case:
With respect to proportionality, [the defendant’s] request for the plaintiffs to allow it to inspect their mobile devices (or produce complete forensic images of their devices) is disproportional to the needs of the case. While questions of proportionality often arise in the context of disputes about the expense of discovery, proportionality is not limited to such financial considerations. Courts and commentators have recognized that privacy interests can be a consideration in evaluating proportionality, particularly in the context of a request to inspect personal electronic devices. [emphasis added, footnote omitted]
The Magistrate Judge even went on to suggest a connection between individual privacy interests and overall public interest as a factor:
There is an Orwellian irony to the proposition that in order to get relief for a company’s alleged surreptitious monitoring of users’ mobile device and web activity, a person has to allow the company unfettered access to inspect his mobile device or his web browsing history. Allowing this discovery would further invade the plaintiffs’ privacy interests and may deter current and future plaintiffs from pursuing similar relief. [emphasis added]
Upcoming in this Series
In the next Part of this short Update Series, we will conclude our review of new cases discussing mobile devices since we last covered this topic.