Two More Cases Focused on Privacy – Proportionality Update, Part 4

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A short series reviewing new decisions from 2018 and 2019 addressing proportionality under the December 2015 amendments to the Federal Rules of Civil Procedure

In “A 2019 Update on Proportionality Cases,” we reviewed the proportionality amendment to the Federal Rules of Civil Procedure and the key takeaways from our prior case law review.  In “Proportionality Arguments Must Be Fact-Based and Specific,” we begin our update with a discussion of the Hurd, Firefighters’ Retirement, and Physicians Alliance cases.  In “Factors Beyond Cost,” we continued our update with a discussion of the Ramos, EEOC, and Corel cases.  In this final Part, we conclude our update with a review of the Henson and Santana cases.

In our prior review of cases, we reviewed early cases that made it clear cost was just one factor among many, and that non-financial factors, such as public interest or privacy considerations, can outweigh financial ones, under the right circumstances.  We conclude our review of new cases with one more case from 2018 and one from 2019 that both focus on privacy considerations.

Privacy in Henson

In Henson v. Turn, Inc., Case No. 15-cv-01497-JSW (LB) (N.D. Cal. Oct. 22, 2018), the plaintiffs were bringing a data-privacy class action alleging improper tracking of devices using “zombie cookies.”  During discovery, the Defendant sought to have the Plaintiffs produce their mobile devices for imaging (or produce forensic images of the devices), produce the “full web browsing history from their devices,” and produce “all cookies stored on or deleted from their devices.”  The Plaintiffs opposed these requests and proposed more narrowly-tailored alternatives to each.

The Magistrate Judge began her analysis by emphasizing how central mobile devices have become to our lives and, consequently, how much private data they may now contain:

Users increasingly use a single mobile device – a smartphone or a tablet – for their online activities, including web browsing, reading the news, listening to radio content, accessing their banking information and managing their finances, shopping online, using GPS for directions and traffic updates, communicating over email and social networks, and reading sites like WebMD to assess their medical condition.  [footnote omitted]

Largely because of these privacy concerns (and because narrower alternatives were available), the Magistrate Judge went on to conclude that the discovery requests in dispute were disproportional to the needs of the case:

With respect to proportionality, [the Defendant’s] request for the plaintiffs to allow it to inspect their mobile devices (or produce complete forensic images of their devices) is disproportional to the needs of the case.  While questions of proportionality often arise in the context of disputes about the expense of discovery, proportionality is not limited to such financial considerations.  Courts and commentators have recognized that privacy interests can be a consideration in evaluating proportionality, particularly in the context of a request to inspect personal electronic devices.  [emphasis added, footnote omitted]

The Magistrate Judge even went on to suggest a connection between individual privacy interests and overall public interest as a factor:

There is an Orwellian irony to the proposition that in order to get relief for a company’s alleged surreptitious monitoring of users’ mobile device and web activity, a person has to allow the company unfettered access to inspect his mobile device or his web browsing history.  Allowing this discovery would further invade the plaintiffs’ privacy interests and may deter current and future plaintiffs from pursuing similar relief.  [emphasis added]

Privacy in Santana

In the employment discrimination case of Santana v. MKA2 Enterprises, Inc., No. 18-2094-DDC-TJJ (D. Kan. Jan. 8, 2019), the Defendant sought production of “all cellular telephones used by you from the date your employment with Defendant started to the present for purposes of inspection and copying.”  The Plaintiff objected on the ground that the request was “not proportional” and “unduly burdensome and invasive.”

In her analysis, the Magistrate Judge emphasized the incredible amount of information – much of it both irrelevant and private – that was implicated by a request for production of the devices themselves:

In any event, Plaintiff’s cell phone likely contains a tremendous volume of information, including possibly text messages, email messages, phone logs, and photographs that are not at all relevant to the claims or defenses in this case.  Even many or most of those texts and messages between Plaintiff and his co-workers or former co-workers may have no relevance to the claims and defenses in this case. . . .  Any relevant information concerning phone calls Plaintiff made to or received from co-workers and former co-workers could be more easily and less invasively obtained by asking Plaintiff about the calls during his deposition.  [emphasis added]

The Magistrate Judge then quotes from the Advisory Committee Notes to Federal Rule of Civil Procedure 34(a):

Inspection or testing of certain types of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy. . . .  Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.  [emphasis added]

Based on these principles, the Magistrate Judge found that the Defendant’s discovery request was:

. . . overly broad, unduly burdensome and not proportional to the needs and issues of this case. . . .  In accordance with Rule 34(a), the Court must guard against the undue intrusiveness that would result from the requested inspection and copying of Plaintiff’s cell phone(s).  [emphasis added]

Upcoming Webinar

Later this month, on Wednesday, May 29th, at 1:00 PM EDT, as part of its monthly educational webinar series, Xact Data Discovery will offer a free, one-hour educational webinar on the subject of proportionality.  The program will review the 2018-2019 cases covered in this update series, as well as key cases that came before.


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About the Author

Matthew Verga

Director of Education

Matthew Verga is an electronic discovery expert proficient at leveraging his legal experience as an attorney, his technical knowledge as a practitioner, and his skills as a communicator to make complex eDiscovery topics accessible to diverse audiences. A fourteen-year industry veteran, Matthew has worked across every phase of the EDRM and at every level from the project trenches to enterprise program design. He leverages this background to produce engaging educational content to empower practitioners at all levels with knowledge they can use to improve their projects, their careers, and their organizations.

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