Can a TCPA defendant demand to examine your cell phone?
- Peter Schneider
- 1 day ago
- 9 min read
Telephone consumer protection act defendants typically don't have a lot of great defensive options. They made the calls or they didn't. They were selling selling something or they weren't. So many of their defense tactics are to harass the TCPA plaintiff, and one of those tactics is to demand unfettered access to the cell phone that received the calls for reasons.
Can they just demand you hand over your smart phone so they can thumb through its emails and apps and call records till their curiosity is satisfied? Probably not. Before we get started, keep in mind that as a smart phone is really a computer, courts typically treat demands to examine smart phones the same as demands to examine a computer. Now lets wade through some cases. In Moser v. Health Insurance Innovations, Inc., No. 17CV1127-WQH(KSC), 2018 WL 6735710 (S.D. Cal. Dec. 21 2018), the TCPA defendant demanded Mr. Moser produce for inspection and copying “all servers, computers, tablets, cellular and landline telephones, routers, wireless network equipment, reporting systems, databases and the equivalent containing electronically stored information and information contained on such systems.”
The request specifically seeks inspection of any cellular or residential telephone or other device that uses or has used the telephone numbers identified by plaintiff in the First Amended Complaint. The time period included in this request is January 1, 2013 through the present.
The TCPA defendant claimed that examining the phone was needed to verify if Mr. Moser received the claimed calls because they denied calling Mr. Moser at all. Second, they claimed his electronic devices might support their claim that Mr. Moser visited certain websites and asked for the calls. Specifically they wanted to
"conduct a full forensic examination of plaintiff’s computer without restrictions” for the following information: “browsing history and interaction with websites to determine whether plaintiff provided consent to receive phone calls using an automated telephone dialing system or prerecorded message.”
This is a pretty realistic scenario that I've seen myself. Mr. Moser objected objected, and the court agreed Assuming plaintiff does or has produced his monthly phone bills with the call detail reports and other means are available to discover evidence relevant to the issue of consent, the Court agrees that defendant HII’s request to inspect all of plaintiff’s electronic devices is overly broad and disproportional to the needs of the case at this time. Note that the court's denied was predicated in part on the plaintiff producing call records. Lots of phone companies don't do the detailed call breakdowns anymore, but a subpoena can get this information.
Mr. Moser did something great which I recommend any TCPA plaintiff consider - he cited privilege and privacy issues but offered to get the TCPA defendant what they "needed":
plaintiff expressed a willingness to “discuss a significantly narrowed inspection of the devices that contain relevant information. . . .” In this regard, plaintiff states in the Joint Motion that he would agree to inspection by a “mutually agreeable,” licensed, bonded third party expert pursuant to a “non-disclosure agreement” who would protect irrelevant private or personal information on the devices, and only turn over legitimately relevant, non-personal information to HII . . . In addition, HII is willing to “limit the inspection to 2 days” by a forensic expert “to alleviate any temporary inconvenience the inspection may cause” and to put privacy and privilege protocols in place to ensure protection of irrelevant information.
I recommend a similar offer of "malicious" compliance - offer to let them examine everything you own or have access to, provided it is done by a true third party expert. Once you offer to give them what they want under reasonable terms, you will probably find they have no choice but show the court their true intentions. This TCPA defendant did: HII still seeks an order compelling a very broad, direct inspection of plaintiff’s devices. Because this was always about harassment. I don't recommend a TCPA plaintiff stonewall on device examination because this plays into the defendants hands. If the plaintiff wins the fight, the defendant will cry a river about what the evidence would have shown. And if the plaintiff loses the fight, he might not get the reasonable middle ground solution of a a true third party expert.
This opinion cited some great caselaw on the subject.
Rule 34(a)(1) permits a party to request inspection of “electronically stored information” that is “stored in any medium from which information can be obtained . . .” as long as the request is “within the scope of Rule 26(b).” Fed.R.Civ.P. 34(a)(1). However, “[i]nspection . . . of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy. . . . Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.” Fed.R.Civ.P. 34 advisory committee’s note (2006 amendment) [emphasis added]. In other words, “Rule 34(a) does not give the requesting party the right to conduct the actual search.” In re Ford Motor Co., 345 F.3d 1315, 1317 (11th Cir. 2003). “Like the other discovery rules, Rule 34(a) allows the responding party to search his records to produce the required, relevant data.” “Forensic examination is generally regarded as a drastic step. . . .” Motorola Solutions., Inc. v. Hytera Commc'ns Corp., 314 F. Supp. 3d 931, 939 (N.D. Ill. 2018). “[M]ere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures.” John B. v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008). “[S]ome kind of direct access might be permissible in certain cases.” Id. For example, direct access could be appropriate if there is a “factual finding” by the Court of “improper conduct on the part of the responding party” or intentional destruction of relevant electronic evidence. John B. v. Goetz, 531 F.3d 448, 460-461 (6th Cir. 2008); In re Ford, 345 F.3d at 1317.
There was also a great footnote I have to include here:
In Advante International Corporation v. Mintel Learning Technology, No. C05-01022-JW(RS), 2006 WL 1806151 (N.D. Cal. 2006), for example, the defendant filed a motion to compel a forensic examination of the plaintiffs’ computer system. The defendant argued that a forensic examination was warranted because the plaintiffs were concealing evidence, misrepresenting facts, and engaging in misconduct. Id. at 1. The District Court denied the motion, explaining as follows: “Had [defendant] made the same basic accusations in an earlier age, its claims of incomplete document production, inconsistencies, or even perjury and destruction of evidence, would not automatically entitle it to an order permitting it to enter [plaintiffs’] offices to rummage through filing cabinets and desks. The relief [defendant] is asking for here is no different and no more warranted. Furthermore, notwithstanding the breadth of accusations [defendant] has leveled, it has not presented specific, concrete evidence of concealment or destruction of evidence sufficient to conclude that a forensic examination of the vast scope it proposes is warranted at this juncture, even under an examination protocol that would protect the other parties’ legitimate privacy and other interests.”
The judge also addressed the what websites Mr. Moser visited topic: if plaintiff visited certain websites and then clicked on consents and provided his telephone number, HII would have other means available to discover that information. The court did not specify what those means are, but I would recommend that again, use a subpoena to the TCPA plaintiffs internet service provider(s), have the results go to the correct third party, and the third party can report if specific websites were visited, and can protect the privacy on irrelevant websites.
Moser is just one case, and a district court case, but this line of thinking is the prevailing one. Fastners For Retail, Inc. v. DeJohn 2014-Ohio-1729 (Ohio App. 2014). Not a TCPA case, it involved claims of patent infringement and misappropriation of trade secrets. In discovery the plaintiffs zeroed in on computer hard drives and the trial court ordered them produced and the defendant appealed it.
The appeals court found that the trial court essentially jumped the gun: [t]he record does not demonstrate that the documents FFR sought were being unlawfully withheld and not available from FFR's own information or other sources. Examining electronic devices required more than just asking:
requiring the requesting party to show that there had been a background of noncompliance with discovery . . . the order for forensic imaging was erroneous where the requesting party failed to demonstrate that paper production of the records was insufficient or that the requesting party's need for forensic imaging outweighed the party's privacy interests.
This was mirrored in Stewart v. First Transit, No. CV 18-3768, (E.D. Pa. Sept. 3, 2019). First Transit asked the court to compel Stewart to produce their cell phones for a forensic examination of all GPS data, call logs, and text messages for dates when Plaintiffs had “off-the clock” breaks during their shifts as paratransit drivers while working for First Transit
Defendant argues that the GPS data, text messages, and call logs from Plaintiffs’ personal cell phones will establish that paratransit drivers had access to their personal cell phones during their prolonged “O time” breaks, which “would be powerful evidence they were not working during that time,” and thus “cannot recover in this lawsuit.”
Like the other cases, this court also found [f]orensic examinations of computers and cell phones are generally considered a “drastic discovery measure” because of their intrusive nature.
Generally, “mere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant” a forensic examination. John B., 531 F.3d at 460; see also NOLA Spice Designs, LLC v. Haydel Enters., Inc., No. 12-2515, 2013 WL 3974535 (E.D. La. Aug. 2, 2013) (“[C]ourts have permitted restrained and orderly computer forensic examinations where the moving party has demonstrated that its opponent has defaulted in its discovery
What the judge did give First Transit was to order the plaintiffs to produce the requested GPS and cell phone data [call records] for the dates specified by First Transit. If after this discovery is provided, Defendant believes a forensic examination is necessary, it may renew its request.
The situation more or less repeated itself in case Aminov v. Berkshire Hathaway Guard Ins. Cos., No. 21-cv-00479 (DG) (SJB), 2022 WL 818944, at *1 (E.D.N.Y. Mar. 3, 2022) where a defense attorney used a free online webtool that suggested a video file's metadata was altered.
As an initial matter, the motion is based on misplaced and unsupported speculation. AmGuard alleges that there is reason to believe that the metadata for the video was altered. This belief is based on counsel’s own analysis using a free online metadata tool: www.metadata2go.com (last visited Mar. 3, 2022). Nothing about the tool used—including its reliability—is asserted.
The bottom line is, in TCPA lawsuits these requests to examine your electronic documents is just to harass. In my opinion the correct response isn't stonewalling 'no', but a 'sure, you can set tight parameters of what you are looking for and hire a third party forensics company to look for it and write a report of what it doesn't find, and instruct them to delete all data after the analysis'.
This will put your TCPA defendant in a box like the TCPA defendant in Ramos v. Hopele of Fort Lauderdale, LLC, No. 17-62100-CIV-MORENO/SELTZER, 2018 WL 138188 (S.D. Fla. Mar. 19, 2018), who admitted what they really wanted was
“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.
What Hopele and TCPA defendants like them want is an unfettered fishing expedition to find something.
The same goes for your internet browsing history. I recommend give it up - after the TCPA defendant hires a third party forensics company, and tells the company what websites to look for and what relevant time period to look at. And instructs the third party forensics company to delete the data after the analysis is complete.
Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!
Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.
The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.
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