Limits Set on Compelling Collection of ESI from Personal Cell Phones
Muslims on Long Island, Inc. v. Town of Oyster Bay, (E.D.N.Y. June 4, 2025)
Why The E-Discovery Ruling in Muslims on Long Island v. Town of Oyster Bay Is Important
While personal cell phones and other BYOD devices may contain electronically stored information (ESI) relevant to a legal matter, litigants must still meet the requirements of the court including both control and justification for the belief that relevant ESI will be found on the device.
Overview of Muslims on Long Island v. Town of Oyster Bay
In a religious discrimination lawsuit, a small Muslim congregation in Bethpage, New York, and two of its leaders sued the Town of Oyster Bay after being denied approval to build a mosque. The plaintiffs alleged violations of the Religious Land Use and Institutionalized Persons Act, the U.S. Constitution, and the New York State Constitution.
During discovery, the plaintiffs requested electronically stored information (ESI) from the personal mobile devices of Planning Advisory Board members who voted against the mosque application, arguing such devices were more likely to contain relevant communications reflecting religious animus. The town refused, stating board members were not issued government phones and that no evidence suggested responsive messages existed on personal devices. However, the town offered a compromise: custodians would review their own phones with counsel and produce any relevant messages via screenshots or similar methods.
Plaintiffs responded by filing a motion to compel full searches of the personal devices.
E-Discovery Ruling in Muslims on Long Island v. Town of Oyster Bay
Potential Relevance of ESI on Phones
The court noted that under FRCP 26(b)(1) that parties to litigation are entitled to discovery on “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case,” with relevance being “construed broadly.” Discovery may be requested on documents or ESI within another party’s “possession, custody, or control,” where control is defined as “the legal right or practical ability to obtain” the relevant ESI. However, the party requesting discovery must provide “some justification for its suspicion that relevant messages may be contained on the employees’ personal devices.”
“Hypothetical Justification” Insufficient to Require Production
In evaluating the plaintiffs’ motion under this broad interpretation of relevance, the court questioned the assumption that “explicit statements of religious animus are less likely to be shared through official mediums than through informal channels, like text messages.” Plaintiffs’ failure to provide “proof or plausible explanation for the grounds behind this hypothetical justification,” which lacked “specific, prior incidents or examples where employee’s personal accounts or mobile devices were used for work.”
“Unfettered Discovery” Disallowed
The ruling noted that unsubstantiated requests could lead to “unfettered discovery over personal devices and fishing expeditions” that were not warranted “without some indicia that these personal devices were in fact used for business.” Plaintiffs’ motion to compel discover was denied without prejudice, so if later evidence revealed a likelihood of employees’ use of personal devices for work, it could be resubmitted.
Supposed “common practice” that incriminating information is more likely to be on personal cell phones is not enough to justify discovery, particularly in light of information from counsel that the board members did not have each other’s cellphone numbers nor were there any group chats. But the request was denied without prejudice, so plaintiffs could renew their motion if, for example, depositions or other discovery show that such communications might exist. Hon. Andrew Peck (ret.), Senior Counsel, DLA Piper
E-Discovery Case Law Tip
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