Pearce v. Emmi

Filing 40

ORDER granting 14 Motion for Show Cause Hearing. Show Cause hearing set for April 12, 2017 @ 10 :00 am - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MEGAN PEARCE, individually and
as next friend of BABY B, her infant
child,
Plaintiff,

CIVIL ACTION NO. 16-cv-11499

v.

DISTRICT JUDGE GEORGE CARAM STEEH

MICHAEL EMMI,

MAGISTRATE JUDGE MONA K. MAJZOUB

Defendant.
_____________________________/

OPINION AND ORDER GRANTING PLAINTIFFS’
MOTION FOR SHOW CAUSE HEARING [14]
This matter is before the Court on Plaintiffs’ Motion for Show Cause Hearing against
Nest Labs, Inc.1 (Docket no. 14.) Nest Labs, which is not a party to this action, did not file a
response. This matter has been referred to the undersigned for all pretrial proceedings. (Docket
no. 24.) The Court has reviewed the pleadings and dispenses with oral argument pursuant to
Eastern District of Michigan Local Rule 7.1(f)(2). The Court is now ready to rule pursuant to 28
U.S.C. § 636(b)(1)(A).
I.

Background
Plaintiffs Megan Pearce and her infant child filed this action against Defendant Hazel

Park Police Officer Michael Emmi, in his individual capacity, on April 26, 2016. They assert
claims under 42 U.S.C. § 1983, the Federal Wiretapping Act, and provisions of Michigan state
law. (Docket no. 1.) They allege that Defendant Emmi viewed Plaintiff Pearce, in the nude,
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Also before the Court is Plaintiffs’ Motion to Extend Discovery Deadlines (docket no. 38),
which the Court will address separately.

breastfeeding her child on two occasions through a “Nest Cam” that Plaintiff Pearce installed in
the child’s nursery.
According to Plaintiff Pearce, the Nest Cam is a motion-sensitive security camera that
allows users to monitor their homes remotely using a cell phone or other device that connects to
the Internet.

Users receive a notification through their device whenever the Nest Cam is

activated, and, when a user is monitoring the Nest Cam’s feed through their device, an external
light on the Nest Cam flashes. (Id. at 2.) The Nest Cam also “retains IP address logs regarding
device access.” (Docket no. 14 at 2.) Plaintiff Pearce claims that the only devices which had
access to her Nest Cam were her cell phone, her iPad, and the cell phone belonging to her fiancé,
Cody Fuhrman, who is also the child’s father. Mr. Fuhrman had recently been arrested on March
2, 2016, in connection with a marijuana growing operation, and had his cell phone seized by the
Oakland County Sheriff’s Office. Defendant Emmi participated in the execution of the search
warrant on Mr. Fuhrman’s property, along with other officers from the Hazel Park Police
Department and the Oakland County Task Force Narcotics Enforcement Team. (Docket no. 1 at
4.)
Plaintiff Pearce claims that, as she was breastfeeding her child, she noticed that the Nest
Cam light began to flash, indicating that a device was connected to the camera’s feed. Because
she was in possession of her own phone and iPad, she believed that the device was Mr.
Fuhrman’s cell phone. She then allegedly looked up the location of the phone using the “Find
my iPhone” application, and discovered that Mr. Fuhrman’s phone was located in what was
revealed to be the residence of Defendant Emmi. (Id. at 2-3.) At that point, she claims that she
attempted to “disable the phone’s monitoring capability, and thought she was successful.” (Id. at
3.) Later that evening, however, also while breastfeeding her child, Plaintiff Pearce claims that

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she noticed the external light began flashing again. This time, she was on the phone with her
brother and allegedly exclaimed, “Oh my God, someone is watching me again!” She claims that
immediately thereafter, the light stopped flashing, indicating that the device was disconnected
from the Nest Cam. (Docket no. 1 at 3.)
On July 8, 2016, Plaintiffs served a subpoena on Nest Labs, Inc. (which produces the
Nest Cam), pursuant to Federal Rule of Civil Procedure 45. (Docket no. 14-1.) In the subpoena,
Plaintiffs request the “IP address and monitoring log information for every device connected to”
Plaintiff Pearce’s Nest Cam and “Nest Cam thermostat” from March 1, 2016 through March 8,
2016, “including the time stamp” and other information. Plaintiff also requests “all store[d]
video and audio footage from any access, interface or monitoring of these devices.” (Id. at 4.)
The requested information was to be produced to Plaintiffs’ counsel by 5:00 a.m. on July 22,
2016, but Nest Labs never responded. Plaintiffs then filed their instant Motion for Show Cause
Hearing Against Nest Labs, Inc., to which Nest Labs also did not respond. (Docket no. 14.)
II.

Plaintiffs’ Motion for Show Cause Hearing
Federal Rule of Civil Procedure 45 governs the issuance of subpoenas for the discovery

of information from third parties. Rule 45(e) provides that the “issuing court may [on its own or
on a party’s motion] hold in contempt a person who, having been served [with a subpoena], fails
without adequate excuse to obey the subpoena.” Fed. R. Civ. P. 45(e). Nest Labs was properly
served with Plaintiffs’ subpoena in this matter, and it failed to properly produce the requested
materials and information. Nest Labs has filed no objection to the subpoena, has not moved to
quash the subpoena, and has not responded to Plaintiffs in any manner. Therefore, the Court will
grant Plaintiffs’ Motion, and will order a representative from Nest Labs to appear and show
cause why Nest Labs should not be held in contempt of court for its failure to produce the

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materials as directed. The Court will also order Nest Labs to produce the requested materials at
or before the time of the hearing.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Show Cause Hearing
Against Nest Labs, Inc. [14] is GRANTED.
A representative from Nest Labs, Inc. is ordered to appear on April 12, 2017 at 10:00 am
in Room 642 of the Theodore Levin United States Courthouse, 231 W. Lafayette Blvd., Detroit,
Michigan and show cause why Nest Labs, Inc. should not be held in contempt of court for
its failure to produce materials in response to a subpoena by 5:00 a.m. on July 22, 2016.
Nest Labs, Inc. is further ordered to produce the information and documents requested in
the subpoena at or before the hearing on April 12, 2017.
NOTICE TO THE PARTIES
Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date
of this Order within which to file any written appeal to the District Judge as may be permissible
under 28 U.S.C. § 636(b)(1).

Dated: February 9, 2017

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Opinion and Order was served upon counsel of record
on this date.
Dated: February 9, 2017

s/ Lisa C. Bartlett
Case Manager

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