United States District Court, E.D. Louisiana
MELISSA RIVERA AND RICARDO SILVA SR.
JENNIFER ROBINSON AND HER INSURER, STATE FARM MUTUAL INSURANCE COMPANY, CHURCH OF THE KING INCORPORATED, D/B/A A/K/A CHURCH OF THE KING AND ITS INSURER, CHURCH MUTUAL INSURANCE COMPANY
WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE.
the Court is a Motion to Expedite Discovery of
Jennifer Robinson Cell Phone Data to Avoid
Destruction (Rec. doc. 24) filed by the Plaintiffs,
Melissa Rivera and Ricardo Silva, Sr. Parents of decedent
Ricard Silva, Jr. The defendants collectively filed an
Opposition to Plaintiffs' Motion
to Expedite discovery of Jennifer Robinson's Cell Phone
Data to Avoid Destruction. (Rec.
defendants also filed a Motion to Strike the
Affidavit of Lance Sloves, or in the Alternative, to File a
Sur-Reply to Plaintiffs' Motion to Expedite Discovery of
Jennifer Robinson's Cell Phone Data to Avoid
Destruction. (Rec. doc. 37) The Motion is opposed.
(Rec. doc. 51)
matter arises as a result of an auto accident that occurred
on La 1082 when the defendant Robinson was preparing to turn
in a private drive at 77011 Hwy, 1082 Covington, La. At the
time she began her turn, according to the complaint, she
failed to wear a seatbelt, and nor did she use her turn
signal. She allegedly also had an illegal retractable window
shade pulled down on the driver's side window blocking
to the plaintiffs, Robinson was distracted and failed to see
Ricard Silva Jr. Who was traveling on the same highway in the
opposite direction. She attempted an abrupt left turn without
yielding causing Silva to apply his brakes at maximum
capacity to avoid the incident but could not. As a result,
the vehicle and motorcycle crashed ejecting Silva some 50.8
feet where he landed face up. Silva died of massive internal
injuries. According to plaintiffs, Robinson was a distracted
driver and likely was using her cell phone or other media at
the time of the collision.
sent a pre-suit preservation letter dated October 30, 2018 to
defendants counsel regarding their intent to “inspect
Robinson's cell phone”. (See Rec. doc. 24-3) The
lawsuit was filed on December 20, 2018 and another letter
request was sent on January 24, 2019 referencing the earlier
preservation letter. While this letter indicates that the
plaintiff failed to return a signed release of her phone, the
first letter never made such a request. Again,
plaintiffs' counsel simply requested that the phone be
preserved. (Rec. doc. 24-3, Page 2) Interestingly at the time
these letters were sent, summons had only recently been
executed and the delays had not yet run for the defendants to
answer the complaint and issue had not been joined. (Rec.
letter was sent on January 31, 2019 several days before the
defendants made an appearance. (Rec. doc. 20-22) On this
occasion the letter disclosed that the plaintiffs retained a
forensic cell phone examiner who would download and inspect
Robinsons entire phone purportedly for the information or
evidence that exists on the phone on the date of the
incident. (Rec. doc. 24-3, P. 3) This correspondence is the
first one that had the accompanying authorization for the
release of cellular phone and messaging records.
subject motion seeks to obtain historical cell phone data
from the cell phone tower. The motion was filed before the
Rule 16 conference, but the conference has since occurred.
(Rec. doc. 36)
the request was made before discovery could commence, that
issue is now resolved as the conference has occurred.
Plaintiffs complain that it submitted a general request to
Robinson to produce her cell phone records on several
occasions there was no response from her lawyer. They do not
spell out whether the form of request was incompliance with
the Federal Rules of Discovery or by correspondence which is
an informal approach to securing the information.
defendants seek the production of Robinson's cell phone
data and provide her cell phone for downloading by a
certified computer specialist Lance Silva. The plaintiffs
also seek an order compelling Robinson to furnish her pass
code or lock code for her cell phone used on the date of the
opposes the motion and contends that the information sought
is premature, not relevant, overly broad and not reasonably
tailored for the needs of the case. Robinson, head of the
Women's Ministry at Church of the King, contends that she
has privacy interests which are not protected by the overly
broad request for a cloning of her phone which would include
all her communications with members of her church which could
include counseling, communications with her lawyers and
personal transactions unrelated to the case. Given the overly
broad nature of the request, the court does not reach the
issue of her privacy interests.