Pearce v. Emmi

Filing 53

OPINION AND ORDER Granting In Part and Denying In Part Defendant and Non-Party the Oakland County Sheriff's Office's 41 Motion for Reconsideration/Objection to Magistrate's Opinion and Order. Signed by District Judge George Caram Steeh. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MEGAN PEARCE, individually
and as NEXT FRIEND of
BABY B, her infant child,
Plaintiff,
Case No. 16-11499
HON. GEORGE CARAM STEEH

vs.
MICHAEL EMMI,
Defendant.
___________________________/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT AND NON-PARTY THE OAKLAND COUNTY SHERIFF’S
OFFICE’S MOTION FOR RECONSIDERATION/OBJECTION TO
MAGISTRATE’S OPINION AND ORDER (DOC. 41)
This matter is presently before the Court on defendant Michael Emmi
and non-party Oakland County Sheriff’s Office’s (OCSO) motion, (Doc. 41),
for reconsideration/objection to Magistrate Judge Majzoub’s Opinion and
Order, (Doc. 39), dated February 9, 2017.
Pursuant to E.D. Mich. LR 7.1(h)(2), motions for reconsideration are
typically decided without response briefs or oral argument. Here, however,
defendant Emmi and the OCSO’s motion raised four issues not previously
presented to Magistrate Judge Majzoub. The Court, therefore, ordered
additional briefing and held oral argument on March 28, 2017. For the

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reasons stated below, defendant Emmi and the OCSO’s motion is
GRANTED IN PART AND DENIED IN PART.
I. Background
Plaintiff Megan Pearce, individually and as next friend of Baby B, her
infant child, sued defendant Michael Emmi, asserting claims under 42
U.S.C. § 1983, the Federal Wiretapping Act, and provisions of Michigan
state law. Plaintiff alleges that defendant viewed her breastfeeding her
infant in the nude on two occasions in March 2016, by accessing a “Nest
Cam” application installed on the iPhone of Cody Fuhrman, Plaintiff’s
fiancé, after Fuhrman’s phone was seized by the OCSO.
Nest Cam is an electronic monitor that provides a live audio visual
stream. The monitor pairs with an application that users download onto
electronic devices like cellphones and tablets. The monitor has a motion
sensor and sends a notification to the application installed on the user’s
electronic device(s) when it detects motion in the room. After receiving
such a notification, the user may open the application and observe the
audio and video captured by the monitor. The monitor has a small green
light, which flashes when the audio and visual live stream is monitored
through the Nest Cam application on an electronic device.

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Plaintiff downloaded the Nest Cam application on three devices – her
cellphone, her iPad tablet, and Fuhrman’s cellphone.
On or about March 2, 2016, Defendant Emmi led a search which
resulted in Fuhrman’s arrest and the seizure of his cell phone. The phone
was purportedly logged into the Oakland County Jail Computer Crime Lab
that same day.
On or about March 3, 2016, Plaintiff noticed the monitor’s green light
flashing while she lay naked breastfeeding Baby B. Plaintiff’s iPad was
turned off and her iPhone was not monitoring the Nest Cam. Therefore,
Plaintiff questioned whether Fuhrman’s iPhone – the only remaining device
paired with her Nest Cam monitor – was being used by a stranger to watch
her nurse Baby B. Plaintiff purportedly used the “Find my iPhone”
application to determine that Fuhrman’s iPhone was located at the address
where defendant Emmi resides.
Plaintiff seeks to examine Fuhrman’s iPhone to collect evidence
regarding her assertion that the iPhone was active at the times that she
and her infant were spied upon. Plaintiff delivered a subpoena to the
OCSO on July 15, 2016. The OCSO objected, claiming that the iPhone
was related to an ongoing criminal investigation. Although Fuhrman is
expected to plead guilty to state narcotics offenses, the OCSO retains his
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iPhone as evidence, claiming that Furhman may withdraw his guilty plea
within six months of his sentencing. Plaintiff filed a Motion to Compel the
OCSO to Comply with the Subpoena to Produce Fuhrman’s iPhone. (Doc.
15). The OCSO opposed the motion, arguing that the examination would
destroy the chain of custody and adversely affect their ability to prosecute
Fuhrman. (Doc. 19 at PageID 154-55). The motion was referred to
Magistrate Judge Majzoub and determined without oral argument pursuant
to E.D. Mich. LR 7.2(f)(2).
Magistrate Judge Majzoub granted plaintiff’s Motion to Compel,
finding that the relevance of the information potentially stored on the
iPhone outweighed the risks identified in the OCSO’s response, and
ordered that the iPhone be produced by the OCSO for plaintiff’s expert
examination. (Doc. 39 at PageID 362). Additionally, “[t]o address the
OCSO’s valid concerns” Magistrate Judge Majzoub adopted a portion of
the OCSO’s alternative proposal, ordering that “a representative of the
OCSO be allowed to attend, but not to obstruct or interfere with Mr. St.
Peter’s examination.” (Doc. 39 at PageID 363).1 An OCSO representative
was ordered to produce Fuhrman’s phone for forensic examination by
plaintiff’s expert, Mark St. Peter, at Computing Source, 29401 Stephenson
1

This order also denied two Motions to Quash, (Doc. 30, Doc. 31). Defendant and the OCSO do not
move for reconsideration of these denials.

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Highway, Madison Heights, MI 48071, by close of business on February
28, 2017. (Doc. 39 at PageID 362-63). St. Peter was ordered to download
a copy of the phone’s memory and provide it to the OCSO, at the OCSO’s
expense, before performing his examination. (Id.).
Defendant Emmi and the OCSO now request the Court to order (1)
St. Peter to view and note the open applications on Fuhrman’s iPhone prior
to conducting the examination; (2) the OCSO to remove the iPhone’s SIM
card prior to the forensic examination; (3) that Emmi’s computer forensic
examination expert may attend St. Peter’s exam; and (4) that the iPhone be
returned to the OCSO immediately following the examination.
II. Analysis
Plaintiff opposes defendant’s request to permit his computer forensic
examination expert to attend St. Peter’s exam. (Doc. 44 at PageID 393).
Plaintiff does not object to defendant Emmi and the OCSO’s three other
requests, but notes “that requiring Plaintiff’s expert to turn over information
to the OCSO, which is still involved in a criminal prosecution of Mr.
Fuhrman, would allow the OCSO to obtain information without a warrant
and implicate Mr. Fuhrman’s Fourth amendment rights.” (Doc. 44 at
PageID 393).

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The Court, therefore, must determine who may attend St. Peter’s
examination of Fuhrman’s iPhone, and what they may rightfully observe.
A. The OCSO Representative
Plaintiff does not contest an order requiring their expert to view and
note the open applications on Fuhrman’s phone prior to conducting the
examination. But, the OCSO requests that their representative be
permitted to view this information. (Doc. 41 at PageID 372) (seeking this
information for “the parties and OCSO,” so “Defendant/OCSO” can
determine which applications were open and requesting an order allowing
“all parties present at the exam to see the open applications prior to
beginning the exam.”) (emphasis added).
The Court may not grant such an order at this time. The OCSO has
not provided the Court with sufficient proof that its representative may
legally view and gather information on Fuhrman’s iPhone. In Riley v.
California, 134 S. Ct. 2473 (2014), the Supreme Court held that it “is not
that the information on a cell phone is immune from search; it is instead
that a warrant is generally required before such a search, even when a cell
phone is seized incident to arrest.” Id. at 2493.
The OCSO’s response to the Motion to Compel and its Motion for
Reconsideration did not state whether it has – or ever had – a warrant to
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search Fuhrman’s iPhone. The Court, therefore, invited the OCSO to reply
with information “on their ability to search Fuhrman’s iPhone under Riley v.
California, 134 S. Ct. 2473 (2014), as it pertains to their request to permit
an OCSO representative to view the iPhone’s open applications prior to St.
Peter’s examination.” (Doc. 43 at PageID 390). The OCSO did not
address this issue in their reply. At oral argument, defendant Emmi’s
counsel asserted that Fuhrman’s iPhone was seized with a valid warrant for
any and all information relating to a narcotics investigation.
This representation is insufficient. The warrant has not been
provided to the Court. It is not clear whether the warrant permits the
search of the specified locations and any cell phones found there.
Fuhrman’s iPhone was seized on or about March 2, 2016. Therefore, even
if the warrant did grant permission to search Fuhrman’s iPhone, it is not
clear whether the OCSO’s probable cause grew stale in the intervening
thirteen months. Further, Magistrate Judge Majzoub’s order permitting an
OCSO representative to attend, but not obstruct or interfere with St. Peter’s
examination, does not permit the OCSO to observe information on
Fuhrman’s iPhone without a valid search warrant or Fuhrman’s consent.
The Court, therefore, provides further instruction on the ruling
permitting an OCSO representative to attend St. Peter’s examination. If it
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is necessary for an OCSO representative to observe Fuhrman’s iPhone
throughout the entire examination in order to preserve the chain of custody,
then the OCSO must comply have a search warrant that complies with
Riley or have Fuhrman’s consent. Otherwise, without a warrant or
applicable exception to the warrant requirement, any information that the
OCSO obtains during St. Peter’s examination – either by viewing the
iPhone or hearing St. Peter’s discussion – may be obtained in violation of
Fuhrman’s Fourth Amendment rights.
B. Defendant Emmi’s Expert
Plaintiff objects to defendant Emmi’s request that his expert be
permitted to attend St. Peter’s examination, asserting that the exam is
protected by Fed. R. Civ. P. 26(b)(3)(A) and (B) as well as the work product
privilege. Plaintiff relies on Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D.
289 (W.D. Mich. 1995), which interprets Rule 26 in ruling that core attorney
work product presented to expert witnesses is not discoverable. Defendant
responds that the work product privilege does not apply because St.
Peter’s examination will yield objective data rather than mental
impressions.
Plaintiff’s reliance on Haworth is imprudent. Haworth was decided in
1995. Rule 26 was amended in 2010. The amendments clarify the scope
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of the work product privilege as it pertains to expert reports and
communications.
Fed. R. Civ. P. 26 now provides in relevant part:
(b) Discovery Scope and Limits
...
(3) Trial Preparation: Materials.
(A) Documents and Tangible Things. Ordinarily, a
party may not discover documents and tangible
things that are prepared in anticipation of litigation
or for trial by or for another party or its
representative (including the other party's attorney,
consultant, surety, indemnitor, insurer, or agent).
But, subject to Rule 26(b)(4), those materials may
be discovered if:
(i) they are otherwise discoverable under Rule
26(b)(1); and
(ii) the party shows that it has substantial need for
the materials to prepare its case and cannot,
without undue hardship, obtain their substantial
equivalent by other means.
(B) Protection Against Disclosure. If the court
orders discovery of those materials, it must protect
against disclosure of the mental impressions,
conclusions, opinions, or legal theories of a party's
attorney or other representative concerning the
litigation.
...
(4) Trial Preparation: Experts.
...
(C) Trial-Preparation Protection for
Communications Between a Party's Attorney
and Expert Witnesses. Rules 26(b)(3)(A) and (B)
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protect communications between the party's
attorney and any witness required to provide a
report under Rule 26(a)(2)(B), regardless of the
form of the communications, except to the extent
that the communications:
(i) relate to compensation for the expert's study or
testimony;
(ii) identify facts or data that the party's attorney
provided and that the expert considered in forming
the opinions to be expressed; or
(iii) identify assumptions that the party's attorney
provided and that the expert relied on in forming the
opinions to be expressed.
Rule 26(b)(4)(C) prohibits defendant’s expert from observing St.
Peter’s examination. As plaintiff’s forensic computer expert, St. Peter
qualifies as a witness required to provide a report under Rule 26(a)(2)(B).
Thus, any communications that plaintiff’s counsel and St. Peter have during
the examination, regardless of form, fall within the scope of Rule
26(b)(4)(C).
At oral argument, defense counsel raised concerns that defendant
will not receive information about the examination unless their expert is in
attendance. This view is misguided. Fed. R. Civ. P. 26 merely protects
trial preparation materials and plaintiff’s counsel’s communications with St.
Peter. It does not preclude the exchange of other information. Fed. R. Civ.
P. 26 Advisory Committee’s Note (2010) (“Rules 26(b)(4)(B) and (C) do not
impede discovery about the opinions to be offered by the expert or the
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development, foundation, or basis of those opinions.”). In fact, plaintiff is
required to disclose this information by providing defendant with a written
expert report containing St. Peter’s opinions and all of the “facts or data
considered by [St. Peter] in forming them.” Fed. R. Civ. P. 26(a)(2)(b)(ii).
Additionally, defendant could seek this information under Fed. R. Civ. P.
26(b)(4)(C)(ii), which permits discovery of communications identifying the
facts or data provided by counsel while maintaining protection for “further
communications about the potential relevance of the facts or data.” Fed. R.
Civ. P. 26 Advisory Committee’s Note (2010).
Plaintiff implied that St. Peter will testify if this case proceeds to trial.
Fed. R. Evid. 702 requires expert testimony to be “based on sufficient facts
or data” and “the product of reliable principles and methods” which are
“reliably applied. . . to the facts of the case.” Therefore, although
defendant’s expert would not attend St. Peter’s exam, defendant would
receive information on the procedures and methods St. Peter employs.
Defendant Emmi argues that there is a difference between reading about
the “alleged procedures” and “observing the actual procedures.” (Doc. 45
at PageID 401). There is a difference, but defendant is not entitled to the
latter. Defendant may, however, “question [St. Peter] about alternative
analyses, testing methods, or approaches to the issues on which [he is]
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testifying, whether or not [he] considered them in forming the opinions
expressed.” Fed. R. Civ. P. Advisory Committee’s Notes (2010).
Finally, defendant Emmi argues that his expert will not be able to
conduct their own examination because Fuhrman and plaintiff have not
shared the passcode to Fuhrman’s iPhone. As such, defendant Emmi
asserts that St. Peter’s examination “is the only opportunity for the parties
to view the extraction of the data from [Fuhrman’s] phone.” (Doc. 45 at
PageID 402). It appears as though defendant Emmi is asserting a
substantial need exception to Fed. R. Civ. P. 26(b)(4)(C)’s communication
protection. See Fed. R. Civ. P. 26(b)(3)(A)(ii). “Under the amended rule,
discovery regarding attorney-expert communications on subjects outside
the three exceptions in Rule 26(b)(4)(C). . . is permitted only in limited
circumstances and by court order.” Fed. R. Civ. P. 26 Advisory
Committee’s Note (2010). “It will be rare for a party to be able to make
such a showing given the broad disclosure and discovery otherwise
allowed regarding the expert’s testimony.” Id. “Substantial need consists
of the relative importance of the information in the documents to the party’s
case and the ability to obtain that information by other means.” Stampley v.
State Farm Fire & Cas. Co., 23 F. App’x 467, 471 (6th Cir. 2001) (internal

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citations omitted). “As a general rule, inconvenience and expense do not
constitute undue hardship.” Id.
Defendant has not asserted a substantial need to permit their expert
to attend St. Peter’s exam. Defendant will not be able to view the
extraction of the data on Fuhrman’s iPhone, but the relative importance of
viewing the extraction of data is low. The data itself is much more
important, and defendant will receive it by other means, including plaintiff’s
required disclosures and deposing St. Peter. Therefore, defendant’s expert
shall not be permitted to attend St. Peter’s exam.
III. Conclusion
Defendant Emmi and the OCSO’s motion for reconsideration is
GRANTED IN PART AND DENIED IN PART.
A representative of the OCSO will produce Cody Fuhrman’s iPhone
for forensic examination by plaintiff’s expert, Mark St. Peter, at Computing
Source, 29401 Stephenson Highway, Madison Heights, MI 48071, by close
of business on May 31, 2017. Before performing his examination, St. Peter
is ordered to download a copy of the phone’s memory and provide it to the
OCSO, at the OCSO’s expense.
Plaintiff’s expert is ordered to view and note the open applications on
Fuhrman’s iPhone prior to conducting the examination. The Court cautions
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the OCSO that if its representative attending the examination views this
information without a valid warrant to search Fuhrman’s iPhone, or an
applicable exception to the warrant requirement, such information may be
obtained in violation of Fuhrman’s Fourth Amendment rights.
The OCSO may remove Fuhrman’s iPhone’s SIM card prior to the
examination.
Defendant Emmi’s computer forensic expert is not permitted to attend
St. Peter’s exam.
Fuhrman’s iPhone must be returned to the OCSO immediately
following the examination.
IT IS SO ORDERED.
Dated: May 8, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
May 8, 2017, by electronic and/or ordinary mail.
s/Shawna Burns
Deputy Clerk

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