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Lewis v. Archer Daniels Midland Co.

United States District Court, E.D. Louisiana

December 14, 2018

DERREL LEWIS
v.
ARCHER DANIELS MIDLAND CO. ET AL.

         SECTION “G” (2)

          ORDER AND REASONS ON MOTIONS

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE

         This is a civil action for injunctive relief and money damages under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Plaintiff Derrel Lewis alleges that he was subjected to a racially hostile work environment at the Waggaman, Louisiana shipyard of defendant Archer Daniels Midland Company ("ADM"). The complaint alleges a workplace incident of racial harassment between plaintiff and defendant Edward Collins involving display of a lynching noose on June 12, 2017, which was video-recorded on plaintiff's cellular telephone. See Rec. Doc. Nos. 4, 14; 39-1 at p. 4. Plaintiff also asserts state law tort claims against defendant Collins for assault and intentional infliction of emotional distress. Record Doc. No. 14 at p. 3.

         Two motions that are related in part because they both seek a forensic examination of plaintiff's phone are pending before me. In its motion to compel, ADM seeks six forms of relief: (1) production of plaintiff's Samsung Galaxy S8 cell phone for a forensic examination; (2) production of all data that has been collected, sent, received, derived or extracted from plaintiff's cell phone and information regarding how and when that data was obtained; (3) production of contact information of anyone having care, custody, control, access to or use of plaintiff's cell phone since June 12, 2017; (4) production of information responsive to ADM's Requests for Production Nos. 1-4, including but not limited to information from plaintiff's social media and email accounts; (5) a supplemental deposition of plaintiff and either a deposition or written responses from plaintiff's counsel addressing the creation, handling, preservation, gathering, modification or destruction of plaintiff's cell phone and other evidence; and (6) reasonable attorneys' fees and costs, including those of the forensic examiner, incurred as a result of plaintiff's discovery conduct and ADM's efforts to obtain this discovery. Record Doc. No. 46 at pp. 2-3.

         Plaintiff's motion requests that this court allow his retained cell phone examination expert, Lance Eliot Sloves, to access and conduct a forensic examination of plaintiff's cell phone. Record Doc. No. 50 at p. 1. The motion apparently was prompted by my earlier issuance of a restrictive evidence preservation order to plaintiff and his counsel concerning the phone, while defendant's motion could be considered. Record Doc. No. 48. In its opposition memorandum, defendant ADM argues that, although examination of the phone is necessary, further efforts to identify the phone's allegedly forgotten passcode should be conducted, but if a “passcode bypass” procedure becomes necessary to retrieve the phone's data, forensic examination of the phone should be conducted by a court-appointed neutral, attended and observed by each side's experts, pursuant to a court-approved protocol and all at plaintiff's expense. Record Doc. No. 53 at p. 2.

         On December 5, 2018, I conducted a telephone status conference with counsel in lieu of oral argument to discuss the logistics, scope and cost of any production and examination of plaintiff's cell phone. Record Doc. No. 59. A followup telephone conference was conducted on December 12, 2018, to discuss the status of the parties' efforts to arrange an agreed-upon protocol for further examination of plaintiff's cell phone. Record Doc. No. 61. Having considered the motion papers and the parties' voluminous submissions, including counsel's emails submitted in connection with the initial telephone conference, Record Doc. Nos. 58, 60, the oral representations of counsel during the conferences, the record as a whole and the applicable law, IT IS ORDERED that the motions are DISMISSED AS MOOT IN PART, GRANTED IN PART AND DENIED IN PART as follows.

         I. Cellular Telephone Production and Examination by a Neutral Examiner

         “Courts hesitate to authorize direct access to an opposing party's electronic storage device.” Realpage, Inc. v. Enterprise Risk Control, LLC, 2017 WL 1180420, at *1 (E.D. Tex. Mar. 30, 2017). However, courts have permitted restrained and orderly examinations of computers and other electronic information storage devices, including by neutral expert examiners, when the moving party has sufficiently demonstrated need and inability to obtain relevant information by more conventional means and measures adequate to protect the privacy or commercial concerns of the party who owns the device are imposed. See, e.g., id. at *2 (finding “a very tailored examination is appropriate”); White v. Graceland College Center etc., 2009 WL 722056, at *7 and cases cited at n. 17 (D. Kan. Mar. 18, 2009); BMG Music Enertainment v. Arellanes, 2006 WL 82010875 (E.D. Tex. Oct. 27, 2006).

         “[T]he requesting party must show that the responding party has somehow defaulted in its obligation to search its records and produce the requested data” and that “the responding party's production ‘has been inadequate and that a search of the opponent's [electronic storage device] could recover deleted materials.'” Realpage, 2017 WL 1180420, at *1 (quoting Diepenhorst v. City of Battle Creek, 20076 WL 1851243, at *3 (W.D. Mich. June 30, 2006). “Generally, only ‘specific, concrete evidence of concealment, destruction of evidence, or failure to preserve documents and information' will warrant drastic electronic measures. . . . The utility of permitting a forensic examination of personal cell phones must be weighed against inherent privacy concerns. Issues that may be relevant to the inquiry include whether the party withheld information, whether the responding party is unable or unwilling to search for the requested information and the extent to which the requesting party has complied with discovery requests.” John Crane Group Corp. v. Energy Devices of Texas, Inc., 2015 WL 11112540, at *1 (E.D. Tex. Oct. 30, 2015) (quoting Sophia v. Chloe, Inc., 2013 WL 5212013, at *2 (S.D. Calif. Sept. 13, 2013) (emphasis added).

         The Official Advisory Committee Notes to the 2006 Amendments to Rule 34 caution:

As with any other form of discovery, issues of burden and intrusiveness raised by requests to test . . . can be addressed under Rules 26(b)(2) and 26(c). Inspection or testing of certain types of electronically stored information or of a responding party's electronic information system may raise issues of confidentiality or privacy. The addition of testing and sampling to Rule 34(a) with regard to . . . electronically stored information is not meant to create a routine right of direct access to a party's electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.

         Advisory Committee Notes to 2006 Amendments, quoted in Federal Civil Judicial Procedure and Rules at p. 175 (Westlaw Pamph. 2018 rev. ed.).

         Defendant ADM has shown that the information on plaintiff's cell phone is extremely relevant to plaintiff's claims and ADM's defenses. The video of the lynching noose incident is key evidence in this case. Defendant Collins has testified, however, that the brief video excerpt that has been produced to date is merely a snippet of a much longer video that will show, along with the history of text messages between plaintiff and Collins, that the incident was a small part of a long-running, joking, non-harassing - albeit wrongheaded - race-based exchange between the co-workers. Record Doc. No. 46-5. Plaintiff disputes that a longer video is on the phone. However, if Collins's testimony is deemed credible and the alleged longer video exists but is not recovered, it is possible that the video produced to date will not be admissible at trial. Fed.R.Evid. 106. Communications, photo/video evidence and metadata relating to the incident and the relationship between Collins and plaintiff, if they exist, will likely be discovered via forensic examination of plaintiff's cell phone. In addition, a previously agreed-upon attempt to access the data on plaintiff's phone at the office of defendant's retained expert failed because plaintiff could not provide the phone's SIM card or recall its correct passcode. ADM has demonstrated that it will be unable to obtain this relevant information unless a proper expert examination is conducted. By filing his own motion, plaintiff implicitly recognizes the same need for further examination of the phone.

         To their credit, both sides have recognized the benefit that neutral examination of the cell phone will provide to the truth-seeking process in this case. Consistently with the cooperative efforts contemplated by the Federal Rules in circumstances like these, after discussions with their experts, each other and the court, the parties have agreed that a neutral expert is the best - perhaps even the only - available resource for the technology potentially needed to access the phone. Record Doc. Nos. 58, 60. They also have agreed ...


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