The short answer is – maybe; if there is any possibility that the information contained on the phone may be relevant to the claim or defense of any party in the lawsuit.
In this action (Brown Jordan Int’l Inc. v. Carmicle, 2015 WL 6142885 (S.D. Fla. Oct. 19, 2015)), plaintiffs sued defendant in the United States District Court for Southern District of Florida asserting a number of claims including: (a) a violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (“CFAA”); (b) a violation of the Stored Communications Act, 18 U.S.C. §2701; (c) a breach of fiduciary duty and the duty of loyalty; (d) conversion; (e) unjust enrichment; and (f) breach of contract and declaratory judgment (28 U.S.C. § 2201). Defendant, Chris Carmicle, filed suit against BJI Holdings, LLC and other entities and individuals in the Circuit Court of Kentucky wherein he asserted multiple claims including: (i) wrongful termination; (ii) wrongful discharge; (iii) breach of contract; (iv) a violation of the CFAA; (v) conversion; and (vi) defamation.
Carmicle’s suit was eventually removed and consolidated in the Southern District of Florida with the original suit.
During the course of coordinated discovery, the parties entered into a Jointly Stipulated Order Setting Computer Forensic Investigation Protocol (“Ordered Protocol”). Pursuant the Ordered Protocol, Carmicle submitted his electronic devices and storage sites for forensic examination. Based upon review of those devices and sites, BJI Holdings believed that the iPhone owned by Rashna Carmicle (“Rashna”)—Carmicle’s spouse—may contain information relating to the claims in the action. Consequently, on September 5, 2015, BJI Holdings served a subpoena on Rashna requesting the production of her iPhone by September 11, 2015. Rashna resisted and refused to voluntarily produce her iPhone. BJI Holdings accordingly filed a motion to compel.
The Court, relying upon the Federal Rules of Civil Procedure generally, stated that the scope of discovery empowered parties to obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense. Fed. R. Civ. P. 26(b)(1). The Court further noted that:
a request for discovery should be considered to be seeking relevant information if there is any possibility that the information sought may be relevant to the claim or defense of any party in the action.
Against this backdrop, the Court found that the information sought from Rashna’s iPhone appeared to be relevant to the claims asserted in the action and good cause exists. Specifically, Rashna is married to Christopher Carmicle, who is a party in both related actions pending in the U.S. District Court for the Southern District of Florida and during the course of discovery, BJI Holdings received a forensic report indicating that Rashna’s iPhone may contain discoverable information. In the forensic examination report, the examiner outlines data destruction that took place on one of Chris’s Macbook Air laptops and notes:
Review of additional data, including Internet history, cookie files, p-lists and log files do not document any Brown Jordan International data, covered by the scope of this investigation, having been transferred through this laptop. The exception is an Apple iTunes backup file of Rashna’s iPhone, which contains some of the original Brown Jordan International screenshots. This data was not deleted, but apparently unintentionally captured on this computer as the iPhone had been synched via iTunes in December of 2013.
Because BJI Holdings presented sufficient evidence to convince the Court that Rashna’s iPhone may contain information relevant to the claims asserted in the litigation and demonstrated good cause to seek the forensic examination of the iPhone, the burden shifted to Rashna to establish that the requested material either does not fall within the scope of relevance or is of such marginal relevance that the potential harm resulting from production outweighs the presumption in favor of broad disclosure.
Having failed to carry her burden, the Court granted BJI Holdings’ motion to compel and ordered Rashna to produce her phone for forensic examination. The Court did, however, permit Rashna to review the material on the iPhone for privileged material prior to forensic examination.