Want Cell Phone Data in Discovery? You’d Better Be Specific to Overcome Privacy Rights.

It’s no secret that a party requesting information is only entitled to inspect the opposing party’s system or device in extraordinary circumstances. Generally, some allegation of fraud or spoliation is required.

So, when the plaintiffs in Bakhit v. Safety Marking, Inc., 2014 WL 2916490 (D. Conn. 2014)  asked the court to inspect several employees’ cell phones to prove claims of race discrimination, the court said no. Consistent with precedent, the court found that where individual privacy rights are involved, and the request for discovery is broad and invasive, the individuals’ privacy rights trump the discovery rights until the discovery request becomes more narrow and limited in its scope.

Remember that when you ask to see a person’s cell phone, you are asking to see a device containing volumes of personal information.  Smartphones contain contacts, non-work related email, photos, videos, apps, etc. — all of which are private unless otherwise ordered.

And in this case, defendants had already authorized plaintiffs to view the phone and text records from their mobile company, but refused to allow plaintiffs to inspect the cell phones. With such an admission from the defense, plaintiffs’ request looked like little more than a fishing expedition.

Even though plaintiffs alleged that the information contained in the cell phones is critical evidence to their case, the court found that defendants’ privacy rights far outweighed plaintiffs’ discovery rights.  The court noted that the request was not limited and that plaintiffs did not explore any other options or methods to obtain the information sought that would have been less intrusive.

The full case digest is available in  eDiscovery Assistant™  in the Case Digests section. Just type the first name into the search box or you can filter to it by jurisdictions or tags.  

 

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