Bakhit et al v. Safety Markings, Inc. et al

Filing 73

RULING denying without prejudice to re-filing 42 Motion to Compel Inspection of Cell Phones. Signed by Judge Holly B. Fitzsimmons on 6/26/2014. (Katz, Samantha)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
YOSIF BAKHIT and
KIYADA MILES
v.
SAFETY MARKING, INC.,
MARK KELLY, RAY VEZINA,
PHIL BRININGER, JAMES CODY,
TOM HANRAHAN, and JEFF PERRA

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CIV. NO. 3:13CV1049 (JCH)

RULING ON PLAINTIFFS’ MOTION FOR INSPECTION [DOC. #42]
Pending before the Court is a motion by plaintiffs Yosif
Bakhit and Kiyada Miles to permit the inspection of certain
mobile phones provided and/or paid for by defendant Safety
Marking, Inc. to certain of its employees. [Doc. #42].
Defendants oppose plaintiffs’ motion. [Doc. #53]. On May 12,
2014, the Court held oral argument on the pending motion for
inspection. Following oral argument, plaintiffs submitted a
letter brief in support of their position [Doc. #54], to which
defendants responded [Doc. #55]. For the reasons that follow,
plaintiffs’ motion for inspection [Doc. #42] is DENIED without
prejudice to re-filing.
A. BACKGROUND
Plaintiffs bring their complaint pursuant to 42 U.S.C.
§§1981 and 1981a, alleging race discrimination and hostile work
environment on the basis of race. [Compl., Doc. #1]. Plaintiff
Bakhit also alleges constructive discharge and retaliation.
[Id.] Plaintiffs each allege negligent and intentional

infliction of emotional distress. [Id.].1
Unless otherwise noted, the Court derives the following
factual background from the allegations in the complaint. Mr.
Bakhit, a “dark skinned Muslim of Sudanese decent,” began
working for defendant Safety Marking, Inc. in 2008. Plaintiffs
allege that throughout Mr. Bakhit’s employment, Safety Marking
tolerated and ignored on a continuing basis a hostile
environment for persons of color. For example, there was
allegedly widespread use of derogatory race-based references,
racist jokes and comments.
Plaintiffs allege that it was “common practice” among
Safety Marking’s foreman to share racist texts and jokes via
cell phone. [Doc. #42-3, Kidya Miles Aff., ¶11].

Plaintiffs

allege that defendant Ray Vezina sent a racist text message to
plaintiff Yosif Bakhit [Compl., Doc. #1, ¶¶67-68], and showed
Safety Marking employees racist jokes displayed on his smart
phone [Id. at ¶62]. Plaintiff Kidya Miles provided an affidavit
in support of the motion for inspection, and attests, inter
alia, that he saw racist text messages on an employee’s cell
phone, and saw racist images displayed on defendant Vezina’s
cell phone. [Doc. #42-3, Kidya Miles Aff., ¶¶3,5].
Plaintiffs seek to recover data from 2008 through the
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On June 23, 2014, Judge Hall granted in part and denied in part defendants’
motion to dismiss. Judge Hall dismissed both plaintiffs’ common-law claims
for negligent inflection of emotional distress (Counts VII and VIII), and
Bakhit’s retaliation claim under section 1981 (part of Counts I and II).
Judge Hall also dismissed claims brought pursuant to section 1981a, as the
parties agreed that plaintiffs stated no claim for relief under such section.
Plaintiffs have been ordered to file an amended complaint within 21 days of
the ruling on the motion to dismiss. [Doc. #70].
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present from the cell phones of the following Safety Marking
employees: Mark Kelly, Ray Vezina, Phil Brininger, James Cody,
Jeff Perra, Tom Hanrahan, Jason Simpson, Ray Ryan, Chris
Steffens, and Rich Mucherino.2 Plaintiffs seek to obtain “any and
all texts, emails, or other electronically stored information
that are stored or were deleted from the cell phone or web sites
accessed that are derogatory, disparaging, manifest a bias, or a
discriminatory (sic) on the basis of race, ethnicity, color, or
national origin.” [Doc. #42-1, 4]. Plaintiffs state that the
information retrieved “would also include information concerning
the source of each item, the date(s) the item was created or
accessed, and the destination of each text or email
(“metadata”).” [Id.].
On March 4, 2014, the individual defendants received
discovery requests seeking authorization to perform the proposed
imaging and data retrieval and to retrieve phone call and text
records from the individuals’ cellular service providers. [Doc.
#53, 3; Doc. #53-3]. The individual defendants objected to
inspection of the cell phones, but agreed to authorize retrieval
of phone and text records from their cellular service providers.
[Doc. #53, 3; Doc. #53-4].
B. LEGAL STANDARD
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets
forth the scope and limitations of permissible discovery.
2

At oral argument, plaintiffs stated at this point they would only pursue the
motion on the individuals named as defendants: Mark Kelly, Ray Vezina, Phil
Bringer, James Cody, Tom Hanrahan, and Jeff Perra.
3

Parties may obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any
party.

“The party resisting discovery bears the burden of

showing why discovery should be denied.” Cole v. Towers Perrin
Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn. 2009).
As to the discovery of electronically stored information,
Rule 34(a) provides that, “A party may serve on any other party
a request within the scope of Rule 26(b) [] to produce and
permit the requesting party or its representative to inspect,
copy, test, or sample any… electronically stored information…”
Fed. R. Civ. P. 34(a)(1). “This right to information, however,
is counterbalanced by a responding party’s confidentiality or
privacy interests. A party is therefore not entitled to a
routine right of direct access to a party’s electronic
information system, although such access may be justified in
some circumstances.” Genworth Fin. Wealth Mgmt., Inc. v.
McMullan, 267 F.R.D. 443, 446 (D. Conn. 2010) (citing Notes of
Advisory Committee on 2006 Amendments; internal quotations
omitted).
C. DISCUSSION
Plaintiffs argue they are entitled to inspect and image the
cell phones of the individual defendants under the broad scope
of discovery, and in light of the allegations in the Complaint
and Miles’s affidavit. Plaintiffs further contend that the
information sought is critical evidence to their case.
Defendants submit two arguments in opposition. First that the
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Rules do not favor intrusive inspection of personal electronic
devices, particularly when a request is not limited, and second,
that inspection should not be allowed where plaintiffs have not
explored other options to obtain this information.3
Plaintiffs propose a “procedure” for the inspection of the
cell phones. Plaintiffs anticipate the imaging and data
retrieval will require five to ten days to complete. Plaintiffs,
through counsel, intend to have a “data recovery service”
conduct the imaging and data retrieval. This third-party vendor
would then disclose all responsive records, including metadata,
to defendants’ counsel, who would have ten (10) days to conduct
a privilege and responsiveness review. Thereafter, plaintiffs
propose submitting for an in camera review any records
defendants object to producing.
Although the information plaintiffs seek may be relevant to
their claims, on the current record, the Court finds that the
request as framed is overly broad and too intrusive for this
stage of discovery. Contra Freres v. Xyngular Corp., No. 2:13cv-400-DAK-PMW, 2014 WL 1320273, at *4-5 (D. Utah March 31,
2014) (granting motion to compel inspection and copying of
plaintiff’s cell phone where defendant sought “narrow category
of information.”). Indeed, plaintiffs have failed to demonstrate
that they have been unable to obtain similar information through
other discovery methods. Contra Genworth, 267 F.R.D. at 445-47
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Defendants also argue that Safety Marking cannot compel non-party employees
to sign authorizations to access and inspect their personal mobile devices.
[Doc. #53, 9]. However, in light of plaintiffs now limiting their request to
only the named individual defendants, this argument is moot.
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(granting motion to compel defendants to submit computers and
electronic media devices to forensic imaging and examination by
a neutral court-appointed forensic expert where, inter alia,
plaintiff demonstrated nexus between plaintiff’s claims and its
need to obtain a mirror images of the computer’s hard drive, and
“exhaustively established that forensic imaging by a neutral
expert is the only way that the plaintiff will be able to secure
the electronic data to which it is entitled.”). Moreover,
plaintiffs have yet to see what information the authorizations
directed to the individual defendants’ cellular service
providers will yield.

With respect to defendants Kelly and

Cody, plaintiffs have failed to present evidence, or even
allegations, connecting them to the alleged conduct committed
via cellular phone. Until plaintiffs present the Court with
evidence of their participation, the Court is not inclined to
permit inspection of Messrs. Cody and Kelly’s cell phones.
The implication of the individual defendants’ privacy
interests in the data stored on their cell phones also persuades
the Court to deny plaintiffs’ motion. This conclusion is further
reinforced by the recent Supreme Court ruling in Riley v.
California, Nos. 13-132 and 13-212, 573 U.S. __ (June 25, 2014),
which recognized, albeit in the criminal context, the privacy
concerns implicated by the modern cell phone. As Chief Justice
Roberts, writing for the Court noted, the modern cell phone’s
immense storage capacity, “has several interrelated consequences
for privacy. First, a cell phone collects in one place many
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distinct types of information – an address, a note, a
prescription, a bank statement, a video – that reveal much more
in combination than any isolated record. Second a cell phone’s
capacity allows even just one type of information to convey far
more than previously possible.” Id. at 18. The Supreme Court
further recognized that, “[a]lthough the data stored on a cell
phone is distinguished from physical records by quantity alone,
certain types of data are also qualitatively different.” Id. at
19. In this regard, the Supreme Court points to an internet
search and browsing history that may reveal an individual’s
private interests and concerns, such as “symptoms of disease,
coupled with frequent visits to WebMD.” Id. Indeed, this is
precisely the information that may be implicated by plaintiffs’
search of the individual defendants’ cell phones and with what
the Court takes issue.
Accordingly, on the current record, the Court DENIES
plaintiffs’ motion for inspection without prejudice to refiling. In this regard, if plaintiffs re-file the motion,
plaintiffs are encouraged to use other discovery devices to
narrow the scope of their requested search and inspection of the
cell phones. This includes narrowing the requests in both
temporal and substantive scope, as well as limiting the number
of individuals’ phones to be searched.4

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It further appears that the only individual defendants with cell phones
provided by Safety Marking are Messrs. Kelly and Cody. See plaintiffs’ reply
[Doc. #54], and defendants’ sur-reply [Doc. #55].
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D. CONCLUSION
Accordingly, plaintiffs’ motion for inspection [Doc. #42]
is DENIED without prejudice to re-filing.

This is not a

Recommended Ruling. This is a discovery ruling or order which is
reviewable pursuant to the “clearly erroneous” statutory
standard of review. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P.
72(a); and D. Conn. L. Civ. R. 72.2. As such, it is an order of
the Court unless reversed or modified by the district judge upon
motion timely made.
SO ORDERED at Bridgeport this 26th day of June 2014.

______/s/
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HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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