As technology develops, electronic communications – especially text messages – can often be a mine of evidence. While requests for email communications and collections from hard drives and networks are standard in today’s litigation, a party’s text messages and collections from mobile devices are often overlooked. A narrowly tailored request to enforce a forensic investigation can be a valuable discovery tool to analyze the data on a party’s cell phone.
Foundation for Application for Foreclosure
The procedural basis for the application is established in Federal Rules 34 and 26(b). According to the Federal Code of Civil Procedure 34:
A party may serve a request under Rule 26(b) on any other party.
(1) produce and permit the Requesting Party or its representative to inspect, copy, test or sample the following items in the possession, custody or control of the Requesting Party:
(A) any specified document or electronically stored information – including writings, drawings, graphics, charts, photographs, sound recordings, images and other data or compilations of data – stored on any medium from which information is retrieved either directly or on demand may , after translation by the other party into a reasonably usable form[.]
Federal Rule of Civil Procedure 26(b) defines the scope of allowable discovery as follows:
… The parties may obtain disclosures relating to any non-privileged matter relevant to a party’s claim or defense and reasonable to the exigencies of the case, taking into account the importance of the issues in dispute, the amount in dispute and the parties’ relatives access to relevant Information, the resources of the parties, the importance of the discovery in solving the problems, and whether the burden or cost of the proposed discovery outweighs its likely benefits….
In deciding whether to grant a request to compel a forensic examination of a party’s phone, the court considers whether the examination “discloses information relevant to the claims and defenses in the case and whether such an examination would is appropriate to the needs of the case given the cell phone owner’s overriding privacy interest in the contents of his cell phone.” In other words, the otherwise extensive scope of discoverable evidence is tempered by the party’s interest in the privacy of the device. Pable v. Chicago Transit Authority, No. 19 CV 7868, 2021 WL 4789023, *2 (ND Fig. April 2, 2021). For this reason, “the requesting party must provide at least some reliable information that the other party’s representations are misleading or factually inaccurate.” ID.
Pable v. Chicago Transit Authority
in the blackboardthe plaintiff, a former employee of the Chicago Transit Authority (“CTA”), and his manager discovered a bug in an application used by the CTA to provide warnings and service information to its public transit users. ID. um 1. The flaw could have allegedly allowed unauthorized users to take control of the application and post unauthorized alerts on the system. ID. After the plaintiff’s manager attempted to hack the CTA’s application to test the plaintiff’s theory, an investigation by the CTA found that the plaintiff’s actions violated the rules, policies, and procedures of the CTA, forcing the plaintiff to cancel in lieu of termination. ID.
During the discovery, the CTA required all communications from the plaintiff to his manager about the allegedly flawed application. ID. The plaintiff took a picture of his phone and presented what he described as all of his communications. ID. After receiving the plaintiff’s paperwork, the CTA filed a request to compel a forensic examination of the plaintiff’s phone. ID. The CTA was able to raise doubts about the completeness of the plaintiff’s production by showing that the amount of data produced by the plaintiff represented less than 1% of the phone’s storage capacity and that it did not contain any communications exchanged via third-party applications Internet browsing and/or search histories, audio or image files, or other data associated with 151 of the 200 applications on the phone. ID. at 3.
The plaintiff argued that forcing him to present his phone for a second picture would have been an exceptional remedy, that he had already produced all communications from his phone, and that the CTA had not established that he withheld any communications. ID. at 1.
The court granted the CTA’s compulsory motion on the following basis: (1) the original imaging was performed without any opportunity for input from the CTA as to the protocol used for the imaging process; (2) Plaintiff’s extremely low production volume; (3) that the discovery sought — the communication between the plaintiff and his manager about the application — went to the heart of the plaintiff’s complaint; and (4) that plaintiff had no basis to raise privacy concerns, having already taken a picture of the phone himself.
While the myriad red flags of plaintiff’s original production paved the way for CTA’s request to enforce this case, the potential value of targeted discovery from a party’s cell phone should not be discounted. In most cases, we have found that a non-forensic capture of a mobile device is sufficient. However, if doubts about the authenticity and completeness of a mobile device production creep in, a forensic image can be justified.