Ramos v. Hopele of Fort Lauderdale, LLC, No. 17-62100-CIV-MORENO/SELTZER, 2018 WL 138188 (S.D. Fla. Mar. 19, 2018).

In this proposed class action, the court denied the defendant’s request for a forensic examination of the plaintiff’s cell phone. It concluded that the examination was neither relevant to any disputed claim or defense nor proportional.

The plaintiff, Katiria Ramos, asserted in her complaint that she received two unsolicited text messages from Hopele of Fort Lauderdale. Those marketing messages, she argued, violated the Telephone Consumer Protection Act (TCPA). Ramos brought this proposed class action on behalf of the entire class of people who allegedly received similar text messages.

At some point after Ramos received Hopele’s text messages, her phone — which automatically deleted texts after 30 days — erased them.

During discovery, Hopele acknowledged that it had sent text messages to Ramos’s phone on the date she alleged. It then asked Ramos to produce that phone “for inspection and forensic imaging.”

Ramos objected. She argued that imaging was unnecessary, irrelevant to any disputed claim or defense, and disproportionate. Ramos argued that the “only purpose of this request [was] to further harass [her] and invade [her] privacy.”

The court noted initially that Hopele’s request was “not limited in any way,” such as by date or search terms.

The court then turned to Federal Rule of Civil Procedure 26(b)(1), which outlines the scope of permissible discovery. Discovery should be both “relevant to any party’s claim or defense and proportional to the needs of the case.” Further, the court observed that forensic imaging is potentially quite intrusive. Therefore, it “should assess [Ramos’s] legitimate privacy concerns against Hopele’s purported need” for the information. The court immediately noted its concern that “Hopele has put no limits on the scope” of the proposed examination.

Hopele claimed first that it needed a forensic examination to support its arguments regarding Ramos’s spoliation of the text messages. The court rejected this argument. Hopele did not dispute that it sent the messages that Ramos received. Therefore, Ramos’s “deletion of the actual text messages” would not be relevant to any disputed claim.

Nor could Hopele contest the means by which it obtained Ramos’s number. It acknowledged, in answer to an interrogatory, that Ramos provided her phone number when she made a purchase.

Hopele next argued that it needed the forensic examination to establish that there were no damages or injury-in-fact. Again, the court rejected its assertion. It cited Eleventh Circuit cases finding that “receipt of unsolicited text messages alone constitutes an injury-in-fact under the TCPA.”

Trying again, Hopele claimed that a forensic examination would allow it to examine Ramos’s conduct after receiving the message. This, it said, was necessary to assess her similarity to the putative class. The court disagreed. It summarily found that Hopele made “no showing” that Ramos’s conduct regarding the message would be relevant to a class determination.

Finally, Hopele argued that “forensic examination will ‘clear up’ the confusion regarding [Ramos’s] late disclosure of eight other text messages.” Despite whatever confusion may exist, those messages were not asserted in the complaint. Thus, they were not relevant to any disputed claims or defenses.

The court concluded that Hopele’s request for forensic examination was “not tailored to obtain information that [was] relevant” to the case. Further, it was not proportional to the needs of the case. The court denied Hopele’s motion.

Takeaways on Getting the Discovery You Need

When seeking potentially intrusive discovery — whether by forensic examination or otherwise — take care to tailor your request to target relevant data while minimizing the invasion of privacy. Use dates, custodians, keywords, or other metadata to hone in as precisely as possible on the data you need. Additionally, be sure to spell out the justification for your request and the way that the specific limits you have imposed accord with that reasoning.

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