barbed wireYesterday’s post on the Digital Strata blog reported on a 2014 order of a U.S. District Court in Connecticut that applied the U.S. Supreme Court’s decision in Riley v. California, 573 U.S. ___, 134 S. Ct. 2473 (2014) to civil discovery.  I think the Court’s reliance on Riley is misplaced in the civil discovery context; not just because Riley involved state action, but because civil discovery affords a litigant greater protection from oppression and intrusion than that attendant to the search and seizure in Riley

In Bakhit v. Safety Marketing, Inc. 2014 WL 2916490 (D.Conn. 2014), a racial discrimination case, plaintiffs sought to inspect cell phones used by the defendant’s employees for evidence of racist jokes and texts.

The request was more than the usual, absurd fishing expedition in that specific content was sought, the existence of which was supported by an affidavit from a plaintiff attesting that “he saw racist text messages on an employee’s cell phone, and saw racist images displayed on defendant Vezina’s cell phone.”  Still, the request sought to gain direct access to ten persons’ phones.

In the U.S. Supreme Court’s Riley decision, the phone in question was seized by a police officer making a traffic stop.  The inspection of the phone would necessarily compromise private data because phones are crawling with private data. As Chief Justice Roberts noted, the seizure and inspection of a cell phone “has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information — an address, a note, a prescription, a bank statement, a video — that reveal much more in combination than any isolated record. Second a cell phone’s capacity allows even just one type of information to convey far more than previously possible.” Riley at 18.  The government’s search would not be as narrow as Constitutionally mandated.

The Bakhit court points to “implication of the individual defendants’ privacy interests in the data stored on their cell phones” in denying the Motion for Inspection.  The Court supports its conclusion that data on cells phones enjoys a unique protected status in discovery by citing Riley.  The Court’s reliance is misplaced.  From the standpoint of privacy, the storage media doesn’t matter when the responsibility to find and produce responsive, non-privileged information starts and stops with producing parties and their counsel. It’s not the medium, it’s the message.

In civil discovery, highly personal and private information is routinely subject to discovery, including very sensitive information like medical and financial records.  But, it is not seized and searched.  Access is mediated by civil process and by a variety of protective mechanisms, including the right to object and secure a protective order.

The mistake the requesting party made in Bakhit was to seek to–themselves–image and inspect the containers.  That’s a move not greatly different than seeking to rifle through homes and offices, and the harm is little ameliorated by the use of hired (i.e., partisan) technical personnel. The Court in Bakhit was right to kick that idea to the curb because demanding direct access to an opponent’s devices is not just transparency on steroids; it turns discovery on its ear.

The discovery process contemplates that the producing party identify and search reasonably accessible sources, doing so competently and in good faith.  A smart phone is one such readily accessible source. The discovery process contemplates that the producing party’s counsel play a managerial and gatekeeper role in overseeing and intermediating the identification and production of relevant, responsive and non-privileged information.  Even the most Luddite lawyer is capable of securing competent technical assistance to facilitate access to the contents of smart phones and meet the identification and production obligation.

When it comes to civil discovery, there is no right to privacy unique to smart phones versus computers, tablets or files stored in your knickers drawer.  If the evidence is reasonably accessible, responsive and non-privileged, it’s fair game in discovery.  Information is not privileged or undiscoverable because it’s stored on a handheld device.  Nor is it privileged or undiscoverable because it’s stored alongside sensitive, personal or irrelevant data. Those are serious concerns of Constitutional dimension when the State seeks to seize and search devices during traffic stops. They are non-issues in the context of civil discovery where the producing party controls the source and the producing party’s counsel serves as gatekeeper to the evidence.  Reading Riley into civil discovery is just wrong.

But, that’s not the only problem with the Bakhit decision.  There’s some troubling dicta, too.  Per the Court, “The individual defendants objected to inspection of the cell phones, but agreed to authorize retrieval of phone and text records from their cellular service providers.” The Court chided Plaintiffs because they “have yet to see what information the authorizations directed to the individual defendants’ cellular service providers will yield.”  That observatIon puts the cart before the horse.  The phones hold the evidence, and the phones are readily accessible and possessed and controlled by parties to the litigation.  Requiring an opponent to go to a third party to obtain information readily accessible to a party needlessly adds to the cost and burden of discovery.  Wouldn’t every requesting party love to say, “sure, we have that, but you need to try to get it from someone else first?”  It would be a mistake to read Bakhit to suggest that you must exhaust other sources before seeking discovery of evidence on smart phones.  Riley doesn’t stand for that proposition, and, if that’s what the Court meant to convey, the Court got it wrong.

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