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Rivera v. Robinson

United States District Court, E.D. Louisiana

May 16, 2019

MELISSA RIVERA AND RICARDO SILVA SR.
v.
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

         SECTION: “S” (4)

          ORDER

          KAREN WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE.

         Before 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. doc. 28)

         The 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)

         I. Factual Background

         This 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 her vision.

         According 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.

         Plaintiffs 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. doc. 10-12).

         Another 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.

         The 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)

         Although 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.

         Now the 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 crash.

         Robinson 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.

         II. Stand ...


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