The United States Supreme Court’s holding in Riley v. California, 573 U.S. ___ (2014), requiring a warrant to search cellular telephones, is impacting discovery in civil cases. For instance, taking guidance from Riley, a federal court in Connecticut denied a plaintiff’s request to inspect cell phones of the defendant’s employees.
In Bakhit v. Safety Marketing, Inc., Civ. No. 3:13CV1049 (JCH) a former employee of Safety Marketing sued the company alleging racial discrimination. Specifically, Bakhit alleged that it was a common practice for his foreman to share racist jokes and texts via cellular telephone. In discovery, Bakhit sought inspection of several cell phones used by Safety Marketing employees. The employees objected to inspection of the phones, but agreed to authorize retrieval of telephone records from their cellular service providers. The employees argued that the Federal Rules of Civil Procedure do not favor intrusive inspection of personal electronic devices and that production of such devices is impermissible when the requesting party has not explored other options to obtain the information.
The court agreed with the employees’ objections and denied the request to inspect the cell phones. The court deemed the request too broad and held that Bakhit failed to establish the unavailability of similar information from other sources–especially in light of the employees’ authorization to inspect telephone records from the cellular providers. In denying the request to inspect the cell phones, the court drew guidance from Riley:
The implication of the individual defendants’ privacy interests in the data stored on their cell phones also persuades the Court to deny plaintiffs’ motion. This conclusion is further reinforced by the recent Supreme Court ruling in Riley v. California, [573 U.S. ___ (2014)], which recognized, albeit in the criminal context, the privacy concerns implicated by the modern cell phone. As Chief Justice Roberts, writing for the Court noted, the modern cell phone’s immense storage capacity, “has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information — an address, a note, a prescription, a bank statement, a video — that reveal much more in combination than any isolated record. Second a cell phone’s capacity allows even just one type of information to convey far more than previously possible.” Id. at 18. The Supreme Court further recognized that, “[a]lthough the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different.” Id. at 19. In this regard, the Supreme Court points to an internet search and browsing history that may reveal an individual’s private interests and concerns, such as “symptoms of disease, coupled with frequent visits to WebMD.” Id. Indeed, this is precisely the information that may be implicated by plaintiffs’ search of the individual defendants’ cell phones and with what the Court takes issue.
The position taken by the court in Bakhit is not unusual. When seeking inspection of personal computers and electronic devices, courts often set the bar higher because of the personal privacy concerns implicated by inspection of personal computing devices.