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Case Law Alert: Private Data Stored in Mobile Devices May Lead to Production Concerns

Created on March 29, 2019

Director of Marketing at Exterro

In Henson v. Turn (N.D. Cal. Oct. 22, 2018)the court reminded attorneys that appropriately accounting for the proportionality concerns of Rule 26(b)(1) includes scoping production requests in a way that reduces the potential for the production of irrelevant private data.


In this data-privacy class action lawsuit, the e-discovery dispute centered around the defendant’s production request for mobile device data including:

  • Inspection or forensic images of the plaintiffs’ mobile devices
  • Complete browsing history
  • Cookies stored and deleted

The plaintiffs argued that this request “flies in the face of Rule 26(b)’s relevancy and proportionality requirements,” because it would cause them to produce a large amount of mobile data that was irrelevant to the case. Additionally, plaintiffs contended producing cookies and browsing history were beyond the scope of discovery and hindered their privacy rights.


  • Production Request Denied. Citing Rule 26(b)(1) and privacy interests bolstered the plaintiffs’ objection, the court ruled that the defendant’s broad discovery requests included the production of irrelevant, private data.
  • Narrowly Tailored Production Requests Needed. For all three of defendant’s production requests the judge noted that if properly scoped, something which had already been proposed by the plaintiffs, the production requests would be aligned with Rule 26(b)(1).
  • Privacy Concerns. In regard to collecting/inspecting personal data devices, the court’s ruling took into consideration the private nature of such devices. Judge Beeler wrote that allowing such extensive inspection of these private devices may deter subsequent parties from bringing a claim.

Expert Analysis from Anne Bentley McCray, Partner, McGuireWoods

A key factor in this decision was the plaintiff’s willingness to provide data from his phone and browser history which provided the relevant data points without revealing irrelevant person information. The case law was also overwhelmingly in Plaintiff’s favor, as it is a well-established principle that a producing party should be permitted to produce only relevant, responsive data and not unfettered access to phones or computers.

Case Law Tip

Learn more about Rule 26 and proportionality in Exterro's FRCP & E-Discovery: The Layman's Guide.