You would think that by now employees know their cell phones are not, in fact, black boxes where anything goes and "privacy" reigns supreme. You would be wrong.
Background of the Case
Defendants Lee Anne Foster and Richard Kesner are former employees of Plaintiff Measured Wealth Private Client Group, LLC.
While employed with Measured Wealth, Foster and Kesner had access to confidential, non-public information, investment holdings, and other financial information that was not generally known or readily ascertainable by the public or Measured Wealth’s competitors. Both Foster and Kesner voluntarily resigned their positions to join direct competitors of Measured Wealth.
Measured Wealth filed suit alleging that Foster and Kesner, while still employed with Measured Wealth, schemed to acquire and misappropriate confidential client information and trade secrets to induce clients to bring their business to their future employers and to unfairly complete against Measured Wealth.
And you guessed it: disputes over discovery issues ensued.
“The ESI At Issue”
Measured Wealth filed a Motion to Compel Forensic Examination of Kesner’s mobile phone to recover text messages and iMessages for a period of time covering the last several months of his employment with Measured Wealth.
Kesner asserted he had already produced all responsive text messages and iMessages in his possession, custody, or control and was concerned that a forensic collection would present privacy concerns.
The Court's Analysis
The court found that the messages from the desired time four-month period were clearly relevant and proportional to the claims and defenses in the case under Federal Rules of Civil Procedure 26(b)(1), which permits parties to obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.
Kesner’s counsel admitted that Kesner had deleted various relevant text messages but could not be certain of the dates of deletion. The messages could remain on the device, which was the same device in his possession during the relevant time period.
The court also noted that Kesner “appear[ed] to have been somewhat haphazard and incomplete with regard to his production of text messages and iMessages during the discovery process.” Moreover, some of the messages that had been provided to Measured Wealth had been produced in an “incomplete or suspect manner.” This created concerns for the court that not all of the messages sought by Measured Wealth had been produced.
The court found that the best way to ensure that all relevant and proportional discovery was produced in the case was to compel a forensic collection of the cell phone for messages during the requested time period.
To address Kesner’s privacy concerns, the court ordered that an independent expert be appointed to perform the forensic collection and examination of the documents from the resulting search.
What It Means / Why It Matters
Proper data identification, collection, and production are essential to complying with the FRCP and shenanigans are frowned upon.
When there are concerns that a party may be withholding data or otherwise producing data in a suspect manner, a forensic collection may be warranted.
A forensic collection may also be used to recover deleted messages from a mobile device that may not be easily recovered by the device user.
If you have questions about a case or need assistance with collections, let us know. We've been retained by plaintiffs, defendants, and acted as an independent expert. We can help.