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Ramos v. Hopele of Fort Lauderdale, LLC

United States District Court, S.D. Florida

March 19, 2018

KATIRIA RAMOS, individually and on behalf of all others similarly situated, Plaintiff,
v.
HOPELE OF FORT LAUDERDALE, LLC d/b/a PANDORA@GALLERIA, a Florida limited liability company, and PANDORA JEWELRY, LLC, a Maryland limited liability company, Defendants.

          ORDER

          BARRY S. SELTZER, UNITED STATES MAGISTRATE JUDGE

         THIS CAUSE has come before the Court upon Defendant Hopele of Fort Lauderdale, LLC's (“Hopele”) Motion to Compel Forensic Examination of Plaintiff's Cell Phone [DE 44]. This is an action for damages brought by Plaintiff Katiria Ramos (“Ramos”) on behalf of herself and on behalf of a purported class of persons who allegedly received text messages from Hopele and co-defendant Pandora Jewelry, LLC. Plaintiff's Class Action Complaint alleges that on October 19, 2017 at 10:03 a.m., her cellular phone received two text messages marketing goods sold by Defendants at the Galleria in Fort Lauderdale, Florida. She claims that these texts, as well as texts to other consumers throughout the United States, violated the Telephone Consumer Protection Act of 1991 (the “TCPA”), 47 U.S.C. § 227 et seq.

         I. Background and Procedural History

         The TCPA regulates telemarketing. Benzion v. Vivint, Inc., 2013 WL 12304563, at *1 (S.D. Fla. Sept. 20, 2013) (Hunt, M.J.). “The TCPA prohibits the use of an automatic telephone dialing system to ‘make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) . . . to any telephone number assigned to a . . . cellular telephone service.'” Murphy v. DCI Biologicals Orlando, LLC, 797 F.3d 1302, 1305 (11th Cir. 2015) (quoting 47 U.S.C. § 227b(1)(A)(iii)). The prohibition applies to “text message calls as well as voice calls.” Id. The cellular phone on which Plaintiff allegedly received text messages from Defendants is the focus of Hopele's motion.

         Hopele served a Request for Production that asked Plaintiff to “[p]roduce for inspection and forensic imaging the cell phone on which You allege You received the text message identified in your Complaint.” (Request No. 18). Plaintiff objected to the request:

Plaintiff objects to this request on the basis that an inspection and forensic imaging of Plaintiff's telephone is unnecessary and not relevant to any party's claim or defense, or proportional to the needs of the case. It is undisputed that Defendant transmitted a text message to Plaintiff's cellular phone. Therefore, the only purpose of this request is to further harass and invade Plaintiff's privacy. [DE 44, p. 5].

         The forensic examination that Hopele seeks is not limited in any way, whether by search term, date, or identity of the sender or receiver. Hopele argues that a forensic examination is necessary because Plaintiff has allowed or caused the text messages at issue to be deleted from her cell phone.[1] Although Plaintiff's counsel received and produced a text from Plaintiff containing a screenshot of the text messages, [2] Hopele argues that the original text messages and original screenshot contained “metadata” and “a wealth of additional discoverable electronic and forensic data” that are only obtainable through a forensic examination of the cell phone. Hopele's arguments, however, are somewhat vague as to what information it would expect to obtain through a forensic examination.

         Hopele argues that “what happened” to the text message “is relevant (if not central) to Plaintiff's claims, ” and that the information obtained through a forensic examination “may shed light on” spoliation claims and arguments. Further, it argues that “a forensic examination of Plaintiff's cellular phone will reveal a number of details about the Text Message and Plaintiff's actions before and after her alleged receipt” of the text message, which would address Plaintiff's claims of damages. In its reply memorandum, Hopele reported that two days after Plaintiff testified in deposition that she only received two text messages from Pandora on October 19, 2017, her attorney notified Hopele's counsel that she had discovered eight additional text messages on her cell phone, all from Hopele. Hopele raises questions about how the additional text messages were discovered in light of Plaintiff's cell phone automatically deleting messages after 30 days, when the original text messages remain missing, and argues that a forensic examination will help answer those questions.

         II. Analysis

         Rule 26(b)(1), Federal Rules of Civil Procedure, sets forth the limits of discovery:

Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). The question, then, is whether a forensic examination would reveal information that is relevant to the claims and defenses in this matter and whether such an examination is proportional to the needs of the case.

         Courts in this District are mindful of the potential intrusiveness of forensic imaging of electronic devices. See e.g., Benzion v. Vivent, Inc., 2013 WL 12304563 (S.D. Fla. Sept. 20, 2013) (Hunt, M.J.) (“The Court . . . must weigh the inherent privacy concerns against the utility of obtaining this form of discovery.”); Wynmoor Community Council Inc. v. QBE Insurance Corp., 280 F.R.D. 681 (S.D. Fla. 2012) (Snow, M.J.) (setting a “collection and review protocol” to protect against “the potential intrusiveness of compelling a forensic examination”). This Court disagrees with the California decision cited by Hopele, Sherman v. Yahoo! Inc., No. 3:13-cv-00041-GPC-WVG (ECF No. 13) (S.D. Cal. Feb. 20, 2015), to the extent that the court considered a forensic telephone examination to be a “minor inconvenience, ” without regard for privacy interests. Rather, this Court should assess the Plaintiff's legitimate privacy concerns against Hopele's purported need for the requested discovery. Benzion, 2013 WL 12304563, at *3. As part of this assessment, the Court should consider the scope of the requested inspection and its proffered relevance to the claims and defenses in the case.

         Hopele seeks a forensic examination because the text messages received by Plaintiff were deleted. Yet, Plaintiff's deletion of the actual text messages does not appear to be relevant to any claim or defense in this case. Hopele has admitted in its interrogatory answers (interrogatory no. 8) that it “communicated with Plaintiff through the www.eztexting.com platform on the following dates: June 16, 2016, July 7, 2016, and October 19, 2017.” [DE 47-1]. Furthermore, Hopele produced a call log [DE49-4] that shows Plaintiff's phone number receiving a text on October 19, 2017. Thus, the transmitting of the text messages (and their receipt by Plaintiff) on ...


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