What is the Proper Scope When Requesting Production of Cellphones?
Cellphones are technological innovations that are in a constant state of evolution, as evidenced by the booming market and increasingly intelligent functions that they employ. Cellphones have also become hubs for personal and private information. In Yosif Bakhit, et al., v. Safety Marking, Inc., et al., (D. Conn. June 26, 2014), the court looked at these concerns when deciding whether it should allow the inspection and retrieval of metadata from certain employees’ mobile phones that were provided and/or paid for by Safety Marking, Inc. in an alleged race discrimination and hostile work environment lawsuit.
Yosif Bakhit (“Bahkit”) sought to have Safety Marking, Inc. (“Safety Marking”) produce their employees cell phones so that they could recover data from 2008 through the present, as it was alleged that it was common practice for Safety Marking employees to share racist texts and jokes via cell phone.
Bahkit specifically sought to obtain:
1. Any and all texts, emails, or other electronically stored information that are stored or were deleted from the cell phone or web sites accessed that are derogatory, disparaging, manifest a bias, or are discriminatory on the basis of race, ethnicity, color, or national origin.
2. Information concerning the source of each item, the date(s) the item was created or accessed, and the destination of each text or email (“metadata”).
Safety Marking objected to the electronic discovery requests that sought authorization to perform imaging and data retrieval on the phones, citing privacy interests, but agreed to authorize retrieval of phone calls and text records from the defendants’ individual cellular service providers.
The court ultimately ruled against Bakhit, noting the following:
1. The need for non-intrusive inspection of personal electronic devices, especially when requests are not limited, as cellphones collect many types of distinct information in one place;
2. The possibility of exploring other options to obtain the sought after information, as much of the information found on a cellphone can reveal much more in combination that any isolated record could; and
3. The implication of the individual defendants’ privacy interests in the data stored on their cellphones.
However, the court encouraged Plaintiffs to re-file the motion for inspection and to use other discovery devices that would narrow the scope of their requested search and inspection of the cellphones, in both temporal and substantive scope.