Lewis v. Archer Daniels Midland Company, et al

Filing 62

ORDER AND REASONS re 46 Motion to Compel; 50 Motion for Discovery To Allow Lance Sloves to Access Plaintiff's Cell Phone: IT IS ORDERED that the motions are DISMISSED AS MOOT IN PART, GRANTED IN PART AND DENIED IN PART as set forth in document. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 12/14/2018. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DERREL LEWIS

CIVIL ACTION

VERSUS

NO. 17-14190

ARCHER DANIELS MIDLAND CO. ET AL.

SECTION “G”(2)

ORDER AND REASONS ON MOTIONS

This is a civil action for injunctive relief and money damages under Title VII of
the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Plaintiff Derrel Lewis alleges that
he was subjected to a racially hostile work environment at the Waggaman, Louisiana
shipyard of defendant Archer Daniels Midland Company ("ADM"). The complaint
alleges a workplace incident of racial harassment between plaintiff and defendant Edward
Collins involving display of a lynching noose on June 12, 2017, which was videorecorded on plaintiff’s cellular telephone. See Rec. Doc. Nos. 4, 14; 39-1 at p. 4.
Plaintiff also asserts state law tort claims against defendant Collins for assault and
intentional infliction of emotional distress. Record Doc. No. 14 at p. 3.
Two motions that are related in part because they both seek a forensic examination
of plaintiff’s phone are pending before me. In its motion to compel, ADM seeks six
forms of relief: (1) production of plaintiff's Samsung Galaxy S8 cell phone for a forensic
examination; (2) production of all data that has been collected, sent, received, derived or
extracted from plaintiff's cell phone and information regarding how and when that data
was obtained; (3) production of contact information of anyone having care, custody,

control, access to or use of plaintiff's cell phone since June 12, 2017; (4) production of
information responsive to ADM’s Requests for Production Nos. 1–4, including but not
limited to information from plaintiff’s social media and email accounts; (5) a
supplemental deposition of plaintiff and either a deposition or written responses from
plaintiff's counsel addressing the creation, handling, preservation, gathering, modification
or destruction of plaintiff's cell phone and other evidence; and (6) reasonable attorneys’
fees and costs, including those of the forensic examiner, incurred as a result of plaintiff's
discovery conduct and ADM’s efforts to obtain this discovery. Record Doc. No. 46 at
pp. 2–3.
Plaintiff's motion requests that this court allow his retained cell phone examination
expert, Lance Eliot Sloves, to access and conduct a forensic examination of plaintiff's cell
phone. Record Doc. No. 50 at p. 1. The motion apparently was prompted by my earlier
issuance of a restrictive evidence preservation order to plaintiff and his counsel
concerning the phone, while defendant’s motion could be considered. Record Doc. No.
48. In its opposition memorandum, defendant ADM argues that, although examination
of the phone is necessary, further efforts to identify the phone’s allegedly forgotten
passcode should be conducted, but if a “passcode bypass” procedure becomes necessary
to retrieve the phone’s data, forensic examination of the phone should be conducted by
a court-appointed neutral, attended and observed by each side’s experts, pursuant to a
court-approved protocol and all at plaintiff’s expense. Record Doc. No. 53 at p. 2
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On December 5, 2018, I conducted a telephone status conference with counsel in
lieu of oral argument to discuss the logistics, scope and cost of any production and
examination of plaintiff’s cell phone. Record Doc. No. 59. A followup telephone
conference was conducted on December 12, 2018, to discuss the status of the parties'
efforts to arrange an agreed-upon protocol for further examination of plaintiff's cell phone.
Record Doc. No. 61. Having considered the motion papers and the parties’ voluminous
submissions, including counsel’s emails submitted in connection with the initial telephone
conference, Record Doc. Nos. 58, 60, the oral representations of counsel during the
conferences, the record as a whole and the applicable law, IT IS ORDERED that the
motions are DISMISSED AS MOOT IN PART, GRANTED IN PART AND DENIED IN
PART as follows.
I.

Cellular Telephone Production and Examination by a Neutral Examiner
“Courts hesitate to authorize direct access to an opposing party’s electronic storage

device.” Realpage, Inc. v. Enterprise Risk Control, LLC, 2017 WL 1180420, at *1 (E.D.
Tex. Mar. 30, 2017). However, courts have permitted restrained and orderly examinations
of computers and other electronic information storage devices, including by neutral expert
examiners, when the moving party has sufficiently demonstrated need and inability to
obtain relevant information by more conventional means and measures adequate to protect
the privacy or commercial concerns of the party who owns the device are imposed. See,
e.g., id. at *2 (finding “a very tailored examination is appropriate”); White v. Graceland
College Center etc., 2009 WL 722056, at *7 and cases cited at n. 17 (D. Kan. Mar. 18,
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2009); BMG Music Enertainment v. Arellanes, 2006 WL 82010875 (E.D. Tex. Oct. 27,
2006).
“[T]he requesting party must show that the responding party has somehow defaulted
in its obligation to search its records and produce the requested data” and that “the
responding party’s production ‘has been inadequate and that a search of the opponent’s
[electronic storage device] could recover deleted materials.’” Realpage, 2017 WL 1180420,
at *1 (quoting Diepenhorst v. City of Battle Creek, 20076 WL 1851243, at *3 (W.D. Mich.
June 30, 2006). “Generally, only ‘specific, concrete evidence of concealment, destruction
of evidence, or failure to preserve documents and information’ will warrant drastic
electronic measures. . . . The utility of permitting a forensic examination of personal cell
phones must be weighed against inherent privacy concerns. Issues that may be relevant to
the inquiry include whether the party withheld information, whether the responding party
is unable or unwilling to search for the requested information and the extent to which the
requesting party has complied with discovery requests.” John Crane Group Corp. v. Energy
Devices of Texas, Inc., 2015 WL 11112540, at *1 (E.D. Tex. Oct. 30, 2015) (quoting
Sophia v. Chloe, Inc., 2013 WL 5212013, at *2 (S.D. Calif. Sept. 13, 2013) (emphasis
added).
The Official Advisory Committee Notes to the 2006 Amendments to Rule 34
caution:
As with any other form of discovery, issues of burden and intrusiveness
raised by requests to test . . . can be addressed under Rules 26(b)(2) and
26(c). Inspection or testing of certain types of electronically stored
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information or of a responding party’s electronic information system may
raise issues of confidentiality or privacy. The addition of testing and
sampling to Rule 34(a) with regard to . . . 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.
Advisory Committee Notes to 2006 Amendments, quoted in Federal Civil Judicial
Procedure and Rules at p. 175 (Westlaw Pamph. 2018 rev. ed.).
Defendant ADM has shown that the information on plaintiff's cell phone is
extremely relevant to plaintiff's claims and ADM's defenses. The video of the
lynching noose incident is key evidence in this case. Defendant Collins has testified,
however, that the brief video excerpt that has been produced to date is merely a
snippet of a much longer video that will show, along with the history of text
messages between plaintiff and Collins, that the incident was a small part of a longrunning, joking, non-harassing – albeit wrongheaded – race-based exchange
between the co-workers. Record Doc. No. 46-5. Plaintiff disputes that a longer video
is on the phone. However, if Collins's testimony is deemed credible and the alleged
longer video exists but is not recovered, it is possible that the video produced to date
will not be admissible at trial. Fed. R. Evid. 106. Communications, photo/video
evidence and metadata relating to the incident and the relationship between Collins
and plaintiff, if they exist, will likely be discovered via forensic examination of
plaintiff's cell phone. In addition, a previously agreed-upon attempt to access the
data on plaintiff's phone at the office of defendant's retained expert failed because
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plaintiff could not provide the phone's SIM card or recall its correct passcode. ADM
has demonstrated that it will be unable to obtain this relevant information unless a
proper expert examination is conducted. By filing his own motion, plaintiff
implicitly recognizes the same need for further examination of the phone.
To their credit, both sides have recognized the benefit that neutral
examination of the cell phone will provide to the truth-seeking process in this case.
Consistently with the cooperative efforts contemplated by the Federal Rules in
circumstances like these, after discussions with their experts, each other and the
court, the parties have agreed that a neutral expert is the best – perhaps even the only
– available resource for the technology potentially needed to access the phone.
Record Doc. Nos. 58, 60. They also have agreed that further efforts to determine the
correct passcode should be conducted before resorting to a riskier, more expensive
passcode bypass procedure.
The parties have agreed to craft and have made substantial progress in
completing an agreed-upon protocol, which the court will review for approval and
filing in the record after a qualified neutral expert has approved it. This protocol will
provide means by which (a) the cellular telephone will be packaged, shipped and
delivered to the neutral expert; (b) relevant, recoverable data will be recovered and
produced, while irrelevant and/or privileged information will be segregated, logged
and withheld from production; and (c) counsel of record and/or the parties' retained
experts will receive and review the recovered data. The parties' difficulty to date in
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finalizing the protocol has been locating an expert who is capable of conducting the
"passcode bypass" procedure, if that becomes necessary. The parties also have
agreed that all fees and costs associated with the examination must be paid half by
plaintiff and/or his counsel and half by defendant ADM and/or its counsel. In light
of the parties' agreed-upon approach, both motions are DISMISSED AS MOOT
insofar as they relate to further production and examination of plaintiff's cell phone,
pending finalization of the parties' agreement.
II.

Additional Relief Sought by Defendant ADM
Defendant's motion is GRANTED insofar as it seeks an order requiring

plaintiff to produce information responsive to ADM’s Requests for Production

Nos. 1–4, including information from plaintiff’s social media and email accounts.
Fed. R. Civ. P. 34(b)(2)(A) and (B) require that "[t]he party to whom the request
[for production] is directed must respond in writing," and "[f]or each item or
category, the response must either state that inspection and related activities will
be permitted as requested or state with specificity the grounds for objecting to the
request, including the reasons." The rule also requires that "[a]n objection must
state whether any responsive materials are being withheld on the basis of that
objection." Fed. R. Civ. P. 34(b)(2)(C). The rule is structured in this way so that,
in combination with Fed. R. Civ. P. 26(g)(2), both the requesting party and the

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court may be assured that all responsive, non-privileged materials are being
produced, except to the extent a valid objection has been made.
For the reasons discussed above, the requested materials are relevant to
claims and defenses in this case. Placing the noose video in context in terms of the
relationship between plaintiff and defendant Collins is crucial to determining its
true nature either as hostile and threatening as plaintiff contends or part of nonthreatening, consensual banter between the two co-workers. Plaintiff's written
responses to ADM's Requests for Production Nos. 1–4 are incomplete, evasive and
fail to comply with Rule 34(b). Record Doc. No. 46-1 at pp. 8–9; Record Doc. No.
49-2. By making mere statements or directing defendant to "see" certain identified

materials, the written responses assure neither ADM nor the court that all nonprivileged responsive materials have been produced.
In his opposition memorandum, plaintiff objects that these requests are
unreasonably cumulative or duplicative or that the social media materials
requested can be obtained from other more convenient, less burdensome or less
expensive sources, citing Fed. R. Civ. P. 26(b)(2)(C)(i). Record Doc. No. 49 at pp.
9–10. No such objections were asserted in plaintiff's Rule 34(b) written responses.

Thus, they have been waived. Parkcrest Builders, LLC v. Hous. Auth. of New
Orleans (HANO), 2017 WL 1426933, at *5 (E.D. La. Apr. 21, 2017) (quoting In
re United States, 864 F.2d 1153, 1156 (5th Cir. 1989) (“[A]s a general rule, when
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a party fails to object timely to interrogatories, production requests, or other
discovery efforts, objections thereto are waived.”). No later than December 28,
2018, plaintiff must provide ADM with new written responses to ADM’s Requests
for Production Nos. 1–4, clearly stating either that all non-privileged responsive
materials are being produced or that he has no responsive non-privileged materials
in his possession, custody or control.1
The motion is DENIED insofar as it seeks to depose plaintiff's lawyer
regarding the handling of plaintiff's cell phone and any potential tampering with the
phone's data. “Generally, federal courts have disfavored the practice of taking the
deposition of a party’s attorney; instead, the practice should be employed only in
limited circumstances.” Theriot v. Parish of Jefferson, 185 F.3d 477, 491 (5th Cir.
1999) (citing Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir.
1986)). “Taking the deposition of opposing counsel not only disrupts the adversarial
system and lowers the standards of the profession, but it also adds to the already
burdensome time and costs of litigation.” Shelton, 805 F.2d at 1327. There must be
a showing by the party seeking to depose counsel that “(1) no other means exist to

1

In its memorandum in support of its motion, ADM states that plaintiff's answers to
Interrogatories Nos. 5 and 17 "pertain to the instant motion." Record Doc. No. 46-1 at pp. 7–8. ADM
argues, seemingly as background for the relief requested, that plaintiff's current answers are
incomplete because they conflict with other evidence in the case. The motion does not request an
order that plaintiff provide further answers to these interrogatories. Therefore, no such relief will be
compelled. Plaintiff is reminded, however, of his obligation to supplement these answers under Fed.
R. Civ. P. 26(e), if appropriate, and to sign all interrogatory answers, under oath, himself – not
through his counsel – as required by Fed. R. Civ. P. 33(b)(1)(A), (3), and (5).
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obtain the information than to depose opposing counsel, (2) the information sought
is relevant and nonprivileged; and (3) the information is crucial to the preparation
of the case.” Id. (emphasis added). No such showing of the first or third element has
been made at this time.
Defendant's motion is DENIED at this time insofar as it seeks an order
requiring plaintiff to provide supplemental deposition testimony; to produce all data

that has been collected, sent, received, derived or extracted from plaintiff's cell
phone; to produce information regarding how and when that data was obtained;
and to produce all contact information of anyone having care, custody, control,
access to or use of plaintiff's cell phone since June 12, 2017. This relief may well
be unnecessary and unreasonably cumulative or duplicative in light of the
information-gathering and cell phone examination procedures agreed upon by the
parties in their protocol. If the protocol procedures fail to provide relevant
information, defendant's right to file a new motion geared to specifically identified
discovery requests is preserved.
The motion is DENIED insofar as it seeks an award of attorneys' fees and
other expenses. The motion has been granted in part and denied in part. Plaintiff's
opposition to defendant's request that the cell phone should again be submitted to
ADM's retained expert for another attempt to access its data was well-founded.
Under these circumstances, I find that a reasonable apportionment of the expenses

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incurred in connection with this motion is that both sides should bear their own
costs. Fed. R. Civ. P. 37(a)(5)(B).

14th
New Orleans, Louisiana, this _______ day of December, 2018.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

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