Court Declines Request for Forensic Investigation of Non-Party's Mobile Device

Why This Alert Is Important

While there may be situations--such as when a criminal investigation may be necessary--where forensic collection is warranted, courts will likely be reluctant to grant forensic investigation requests lightly, especially when targeting a non-party to litigation.

Overview 

In this workplace disability discrimination case, the plaintiff argued that his employer, UPMC Pinnacle Hospitals, terminated him based on his medical condition, violating the interference and retaliation provisions of the Americans with Disabilities Act and other workplace disability discrimination statutes, rather than for what it alleged was workplace impairment because of drug use. Plaintiff stated that he used legal CBD oils and gummies to manage pain resulting from multiple medical procedures for a chronic spine condition, and that he had informed UPMC this legal use of CBD products could cause occasional positive drug test results. UPMC accused the plaintiff of impairment, suspended his employment, and denied him the opportunity to participate in its Last Chance Agreement program. Eventually, UPMC terminated the plaintiff's employment, claiming a work-related justification for the termination. 

During the discovery phase of the case, various disputes arose. One particular issue involved the plaintiff seeking an order to compel a non-party coworker to surrender her personal cell phone to UPMC for a forensic examination. The plaintiff alleged the coworker had initiated the report regarding his alleged drug use and occasionally used her personal cell phone for work purposes. Additionally, plaintiff disputed the scope of defendant's ESI searches. 
 

Ruling Summary

• Multiple factors "caution against ordering a forensic review" 
  The court carefully considered the factors of privacy, practicality, relevance, and proportionality in relation to plaintiff's request for a forensic review of a non-party's personal cell phone. The ruling expressed caution against ordering such a review due to the intrusive nature of examining an individual's personal electronic media, as a forensic review could potentially uncover “the most intimate of personal details on a host of matters, many of which may be entirely unrelated to issues in specific litigation.” 
• Forensic review disproportionate and invasive 
  The court concluded that caution was particularly important in this case. The plaintiff's coworker had not backed up her phone, and it was unlikely that relevant information would exist on the device. Furthermore, there was no indication that the non-party played any policy-making or decision-making role in the plaintiff's termination. Considering these factors, the court determined that a forensic review of this personal cell phone would be both disproportionate and highly invasive of her personal privacy.
• Dispute over search terms best resolved through collaboration 
  Plaintiff argued that defendant's search terms were too narrow, excluding terms like "CBD," "THC," and "marijuana." Defendant countered that they were used and yielded over 360,000 pages of material. The court ruling noted that the “collaborative efforts between the parties may have fallen short of the ideals expressed in the Sedona Principles,” which state that “ESI searches are best performed in a collaborative fashion.” The ruling found the search acceptable, since there was no clear-cut demonstration of deficiency and the production had “adequately captured potentially relevant electronically stored data.” 
   

Case Law Tip

The courts don’t expect e-discovery professionals to be perfect, but they do expect collaboration and cooperation. Review Exterro’s
guide to the FRCP if you’d like a refresher.