District Court Judge Jorge L. Alonso recently upheld Magistrate Judge Michael T. Mason’s ruling in a sex discrimination and hostile work environment case that forensic examination of a plaintiff’s electronic devices was not proportional to the needs of the case because any benefit the inspection might provide would be outweighed by the plaintiff’s privacy and confidentiality interests. 

At issue in Hespe v. City of Chicago et al., No. 13 C 7998, 2016 BL 417422 (N.D. Ill. Dec. 15, 2016) was the defendants’ request to inspect the plaintiff’s electronic devices for unproduced electronic communications between the plaintiff and her supervisor, the alleged harasser.  In response to discovery requests, the plaintiff had produced 850 text messages she had received from her supervisor.  The defendants later learned during the depositions of the plaintiff and her mother that the plaintiff’s mother was in possession of thousands of additional voice mail and text messages that the plaintiff had forwarded to her mother for safekeeping because she was running out of storage space on her computer.  In response to a subpoena, the plaintiff’s mother then produced 5,748 text messages, a number that dwarfed the 850 plaintiff had produced in the case.

The Court granted the defendants leave to depose the plaintiff for three additional hours to examine her with respect to the newly produced text messages.  Based on the plaintiff’s deposition testimony about the manner and completeness of her production of the text messages, the defendants took the position that they could not rely on the plaintiff’s representation that she had produced all of the ESI documenting her communications with her supervisor.  The defendants, therefore, moved to compel a forensic examination of the plaintiff’s electronic devices to search for unproduced ESI and attempt to recover any relevant ESI that may have been deleted.

Magistrate Judge Mason denied the motion to compel holding that “the requested forensic inspection of plaintiff’s electronic devices was not proportional to the needs of the case, especially considering plaintiff’s privacy and confidentiality interests in her personal devices.”  Noting that forensic inspection is not a routine right of discovery but rather an extraordinary remedy requiring a showing of good cause, District Court Judge Alonso affirmed Judge Mason’s ruling under Fed. R. Civ. P. 26 (b)(1) holding that defendants had not demonstrated that the contents of plaintiff’s devices were likely to go “to the heart of [the] case” (such as in trade secret cases) nor provided any compelling reason to believe that the plaintiff’s production was incomplete.  In so holding, Judge Alonso noted that the defendants had not requested to search for any specifically identified text messages with particular content shown to have existed at one point and that, if found, would conclusively resolve a contested issue in the case.  Since the issue of whether the forensic inspection might recover any lost or deleted ESI appeared to be little more than speculative, the Court found such an examination to be disproportionate when weighed against the plaintiff’s privacy interests.

 This case underscores that a party must show good cause to obtain a forensic examination of all the information on a person’s electronic device when it believes an opposing party’s production of ESI to be incomplete.  Good cause can be established by evidence that an opposing party’s search for relevant ESI was unreasonable and critical information was not produced.  Good cause also can arise from intentional spoliation where the remedy is part of a sanction. See Cohn v. Guaranteed Rate, Inc., No. 1:14-cv-9369, 2016 BL 408763 (N.D. Ill. Dec. 8. 2016).  Absent such a showing, as this case demonstrates, a Court likely would find a forensic examination to be disproportionate under Fed. R. Civ. P. 26 (b)(1).