Forensic Imaging of a Third-Party’s Cellphone Denied in FMLA Suit
Liederbach v. NYU Langone Hospitals, No. 24-CV-00742 (S.D.N.Y. July 16, 2025)
Why This Alert Is Important
This ruling underscores that forensic imaging of personal devices, particularly those belonging to nonparties, remains an exceptional and intrusive form of discovery. Courts require a clear, fact-based showing of need before authorizing such measures, especially when weighed against privacy concerns and proportionality under Rule 26.
Overview
In Liederbach v. NYU Langone Hospitals, No. 24-CV-00742 (S.D.N.Y. July 16, 2025), the plaintiff alleged that NYU Langone violated the Family and Medical Leave Act by wrongfully terminating her after she sought medical leave. During discovery, attention turned to text messages held by an employee of the defendant hospital who was not named as a party to the case.
This employee searched her personal cellphone for responsive messages, took screenshots of those she found, and provided them to defense counsel. No messages existed from before December 2023 because she had switched to a new device before suit was filed, and her prior phone had not been backed up to iCloud. The plaintiff argued that this self-collection was insufficient and that a forensic review could potentially recover deleted or backed-up data. She also claimed that replacing the phone after a May 2022 preservation letter constituted spoliation.
Ruling Summary
- High Bar for Forensic Imaging
Judge Jeannette A. Vargas stressed that “forensic examinations of computers and cell phones are generally considered a drastic discovery measure because of their intrusive nature.” Such examinations may be permitted only if “there is reason to believe that a litigant has tampered with the device or hidden relevant materials” or engaged in other improper conduct. Here, the plaintiff’s request rested on speculation that a review “might uncover backup messages or synced data,” which the court found insufficient. - Proportionality and Third-Party Burden
The court emphasized the employee’s nonparty status, finding that “the notion that [she] should have hired an ESI vendor to search her phone for a limited set of text messages… is not reasonable or proportionate.” It also rejected as unreasonable the idea that she should “turn over her personal phone, containing all manner of personal and private information, to her employer to conduct an invasive and intrusive search.” The ruling applied Rule 26(b)(1)’s proportionality principles, weighing the limited likely benefit against the high burden and privacy invasion. - No Spoliation by Non-Party Witness
On the spoliation claim, the court noted there was “no claim here that Defendant… engaged in spoliation.” The plaintiff argued only that the employee, “by changing phones, engaged in spoliation,” but the court found it “doubtful that these actions can properly be imputed to Defendant.” More fundamentally, the preservation notice “would not have put Defendants on notice that [this employee] was an appropriate custodian… such that preservation efforts should have been undertaken.” She was “not one of the employees whose actions are at issue in this lawsuit.”
Speculation about what a device might contain is insufficient to require forensic imaging; courts require concrete evidence of misconduct or concealment before ordering such intrusive discovery. For corporate internal investigations, this presents a challenge. Often, the most critical evidence surfaces from devices examined initially as a precaution. Had a wider net have been cast and the employee been explicitly included in the legal hold—and instructed that devices could not be wiped, replaced, or discarded—the outcome may have been different.
Collection from personal devices remains a last resort. Privacy rights are a priority for the judiciary. Organizations with BYOD programs must define with precision what constitutes “company-owned” or “business-related” data on a personal device. Without such clarity, courts will be reluctant to authorize invasive collections of mobile data. Proportionality was another key factor in the Court’s analysis. The expense and burden of engaging a forensic expert to image a personal phone were not justified given the claims at issue
Ultimately, the decision underscores two parallel truths:
1) Privacy protections remain paramount—courts will shield individuals from disproportionate and intrusive measures.
2) Corporate investigators face limits—without early identification of custodians, broad legal holds, and defensible preservation, key evidence may be lost or rendered inaccessible.
Bree Murphy, CEDS, Senior Solution Consultant, Exterro, E-Discovery Chicks Co-Host
Data Privacy Tip
For the purposes of most e-discovery matters, logical collection will meet the needs of the court. However, it’s helpful to understand when a forensic collection might be necessary and have that capability if it’s likely to be needed. Read this blog for a more detailed discussion of logical and forensic collections.
