Williams v. State Farm Fire and Casualty Company

Filing 75

MEMORANDUM OPINION; signed by Magistrate Judge Phillip J. Green (jkw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
_________

RONNIE WILLIAMS,
Plaintiff,

Hon. Robert J. Jonker
Case No. 1:17-cv-1147-RJJ-PJG

v.
STATE FARM FIRE AND CASUALTY
COMPANY,
Defendant.

________________________________/
MEMORANDUM OPINION
This case has become mired in a discovery dispute, largely due to Plaintiff’s
failure to take his discovery obligations seriously. Presently before the Court is
Defendant’s motion to compel production of Plaintiff’s iPhone 7 Plus and to sanction
Plaintiff for his violation of the Court’s previous order (see ECF No. 39) to produce
that cell phone for forensic analysis. (ECF No. 55). Plaintiff filed no response. 1 The
Court conducted two evidentiary hearings on the pending motion. (Minutes, ECF
No. 69, 72).

Plaintiff sent an unsigned letter, dated June 3, 2019, to Chief Judge Robert Jonker
regarding Defendant’s motion to compel and for sanctions. (See ECF No. 68-1). Judge
Jonker advised Plaintiff that his ex parte letter could not be considered, and directed
Plaintiff how to file a proper response to the motion. (ECF No. 68). Plaintiff elected
not to follow Judge Jonker’s instructions.
1

Having considered all the evidence, and for the reasons articulated below, the
Court finds that plaintiff intentionally disposed of his iPhone 7 Plus cell phone to
avoid his discovery obligations. Accordingly, and for the reasons articulated below,
the Court will grant Defendant’s motion to compel. As for Defendant’s motion for
sanctions, the Court will grant it in part, deny it in part, and dismiss the remainder
of the motion without prejudice. The Court will sanction Plaintiff in the form of
awarding Defendant’s reasonable costs and fees in bringing the instant motion (ECF
No. 55), as well as those reasonable costs and fees Defendant incurred after
February 4, 2019, associated with its earlier motion to compel (ECF No. 28), including
the expense of the forensic analysis.
Procedural History
Plaintiff Ronnie Williams filed suit in Kent County Circuit Court, claiming
breach of contract and bad faith refusal to settle a claim relating to the alleged
burglary of his home on November 27, 2016. (ECF No. 1-1, PageID.7-11). Defendant
State Farm had denied the claim under the concealment or fraud provision of
Plaintiff’s

insurance

policy,

contending

that

Plaintiff

had

“intentionally

misrepresented and concealed material facts and circumstances relating to [the
claimed] loss which bars [his] claim and voids the policy effective November 27, 2016.”
(ECF No. 1-1, PageID.13). Defendant removed the case to this Court under diversity
of citizenship jurisdiction. (ECF No. 1). The bad faith claim was later dismissed by
stipulation of the parties. (ECF No. 11).

2

Defendant asserts that Plaintiff misrepresented a number of material facts
relating to the alleged burglary, including “the circumstances surrounding the
alleged burglary and theft,” Plaintiff’s “whereabouts at the time of the alleged theft,”
and his “cell phone records.” (Answer, ECF No. 9, PageID.55). Defendant contends
that Plaintiff’s claim is barred by his commission of common law fraud. (Id. at 56).
On July 26, 2018, Defendant served discovery requests seeking information
about any cell phone Plaintiff owned or possessed in November 2016, including the
brand and model of the phone, the carrier, and the phone number assigned. (Def’s
Interrog. 6, ECF No. 28-1, PageID.134). Defendant also asked Plaintiff to produce
copies of “any and all call/texting logs for October 1, 2016 – December 31, 2016,” and
“all text messages from November 24-28, 2016.” (Def’s Interrog. 6(f), (g), PageID.134).
Plaintiff responded on September 7, 2018, identifying the only cell phone he
owned or possessed during the relevant time frame as an Apple iPhone 7 Plus, with
Sprint as the carrier. Plaintiff stated that he had no call/texting logs (apart from
billing records already produced), and that his counsel intended to serve Sprint with
a subpoena to obtain the remainder of the records. (Pltf’s Resp. to Interrog. 6(f), ECF
No. 32-1, PageID.154-55). And in response to the request for the text messages,
Plaintiff stated:
Plaintiff does not have a copy of all text messages from November 2428, 2016. The iPhone 7 Plus telephone he had in November 2016 was
subsequently stolen and he is unable to access the text messages that
were made from and stored on that telephone. Plaintiff will work with
counsel in an attempt to obtain the text messages from Apple, but it is
uncertain whether they are available.
(Pltf’s Answer to Interog. 6(g) at PageID.155).
3

Defendant noticed Plaintiff’s deposition for November 13, 2018, which included
a request that Plaintiff produce at the deposition “[a]ny and all cellular telephones in
his ownership or possession on or about [] November 27, 2016[,] and any and all
cellular telephones currently in his ownership or possession.

(ECF No. 28-1,

PageID.120-21). During the deposition, Plaintiff objected to the examination of his
cell phone. (Pltf’s Dep. at 7-9, ECF No. 28-1, PageID.125-27). Defendant’s counsel
(Devin Day) advised Plaintiff of his intention to seek a court order compelling the
production of information from Plaintiff’s cell phone. (Id. at PageID.125). Counsel
also advised Plaintiff of his duty to preserve the evidence on his cell phones:
[Mr. Day]:

But I’ll say to Mr. Williams, your phone and phones are
evidence. And it’s important that you don’t erase anything,
alter anything, destroy anything electronically or
otherwise with regard to the phones. That’s evidence and
needs to be preserved. Okay?

[Plaintiff]:

They already subpoenaed phone records. They have the
phone records. I provided phone records. So with that
being said, that’s more than enough. I mean –

[Mr. Day]:

I understand you may think that. But there’s more
information that I’m interested in.

[Plaintiff]:

Oh, well, I don’t have that phone anymore.

[Mr. Day]:

It doesn’t matter whether you have the device.

[Plaintiff]:

Right.

[Mr. Day]:

But do you understand what I’ve said about it being
evidence?

[Plaintiff]:

Right. I understand.

(Id. at PageID.125-26).
4

On December 14, 2018, Defendant filed a motion to compel discovery. (ECF
No. 28). Specifically, Defendant sought an order requiring Plaintiff “to produce his
cell phone for forensic download of data and information relevant to this litigation.”
(Id. at PageID.108). Defendant contended that the cell phone data is relevant:
[I]t contains information regarding Plaintiff’s whereabouts at or around
the time of the alleged theft including GPS data and Wi-Fi connectivity,
the content of text messages sent and received at or around the time of
the alleged theft, the content of internet searches at or around the time
of the alleged theft, and voicemails and missed/made telephone calls.
(Id.). Defendant’s counsel noted that a cell phone forensic expert had advised “that
the data from the stolen phone may still be recovered from online sources and the
replacement telephone itself.” (Id. at PageID.110).
On February 7, 2019, the Court held a hearing on Defendant’s motion to
compel. (Minutes, ECF No. 38). The hearing had been noticed a week earlier, on
January 31, 2019. (Notice, ECF No. 37). Immediately following that hearing, the
Court granted the motion to compel, in part, ordering that a forensic analysis of
Plaintiff’s cell phone be conducted pursuant to a protective order. (ECF No. 39).
The parties submitted a stipulated protective order, which was granted by the
Court on February 21, 2019. (ECF No. 41). Pursuant to that order, forensic analyst
Brandon Fannon was to perform a forensic download of Plaintiff’s cell phone(s) and
iCloud account(s), and he was to prepare a mirror image of any data or information
obtained. (Id. at PageID.182-83). The analyst was to capture, for the time period
October 29, 2016, to December 24, 2016, the following: photographs and videos; text
messages; voicemail messages; GPS location information; Wi-Fi connectivity
5

information; web search and internet browsing information, using designated search
terms; and social media posts. (Id. at PageID.183-84). Photographs, videos, and
other information of a personal nature were to be redacted with a description of the
redacted material provided. (Id.). Plaintiff’s counsel had fourteen days to review the
forensic report for potential objections prior to its dissemination to Defendant’s
counsel. (Id. at PageID.185).
On May 22, 2019, Plaintiff’s counsel filed a motion to withdraw as legal
counsel, citing Plaintiff’s failure to pay his attorney’s fees and expenses.

(ECF

No. 44). That same day, the parties filed a joint motion to adjourn the trial and final
pretrial conference (Motion, ECF No. 47), citing an ongoing dispute over the data
extraction of Plaintiff’s cell phone. (Brief, ECF No. 48, PageID.202-03). Defendant
filed the pending motion to compel and for sanctions on May 28, 2019. (ECF No. 55).
A hearing was held on May 30, 2019, on Plaintiff counsel’s motion to withdraw
and the joint motion to adjourn the trial and final pretrial dates. (Minutes, ECF
No. 65). During that hearing, Plaintiff advised the Court that he had terminated the
services of his attorney. Accordingly, the Court granted Plaintiff counsel’s motion to
withdraw, as well as the motion to adjourn the trial and final pretrial dates. (ECF
No. 66). The Court set a June 18, 2019, hearing on Defendant’s motion to compel and
for sanctions, and it directed Plaintiff to file a written response to the motion no later
than June 11. (Id.). Plaintiff filed no such response, sending an ex parte letter to
Judge Jonker instead (see footnote 1, supra).

6

On June 18, 2019, the Court held the first of two evidentiary hearings on the
pending motion.

(Minutes, ECF No. 69).

Plaintiff testified, along with forensic

analyst Brandon Fannon. (Id.). Based on Plaintiff’s testimony, the Court determined
that it needed to consider additional documentary evidence. (See 6/18/19 Order, ECF
No. 70). Accordingly, the Court ordered Plaintiff to obtain and produce “[a]ny and all
police reports or other documents relating to the theft of plaintiff’s iPhone 7 Plus in
the Summer of 2018,” and “[a]ny and all records and receipts concerning [Plaintiff’s]
purchase of an iPhone XR on or about February 4, 2019, including any documents
regarding the iPhone 7 Plus he exchanged at that time.”

(Id. at PageID.350).

Plaintiff filed copies of these documents on June 27, 2019. (ECF No. 71).
On July 9, 2019, the Court conducted a second hearing regarding Defendant’s
motion to compel and for sanctions. (Minutes, ECF No. 72). Plaintiff and Defendant’s
counsel appeared and were heard. The motion was taken under advisement pending
receipt of transcripts of the hearing.
Relevant Facts
1.

Relevant Events Surrounding the Alleged Burglary

Plaintiff claims that his home was burglarized on Sunday, November 27, 2016,
and that personal property worth more than $50,000 was stolen. (Complaint at ¶¶ 6,
9). He alleges that he was at work at the time of the burglary, and that his brother
called him on his cell phone around 5:30 p.m. that day to advise him that his home
had been burglarized. (6/18/19 Hrg Tr. at 30, ECF No. 74, PageID.418). Phone
records contradict Plaintiff’s contention, however, indicating that Plaintiff had
7

initiated the phone call that day with his brother. (See id. at PageID.401). Plaintiff
used his cell phone to call the Albion police station to report the burglary, but he
would not allow any officer to come to his house. (Id. at PageID.418-19, 427-28).
Plaintiff worked the remainder of his shift that day, returning home around
midnight. (Id. at PageID.425-27).
Plaintiff contends that he attended a poker game early Sunday morning,
November 27, 2016, from approximately 1:00 a.m. to 7:00 a.m. But he states that he
cannot remember the street number of the residence in which the poker game was
played. Moreover, other than that the host of the game went by “Eric B,” Plaintiff
states that he does not know the names of any of the participants of the poker game.
(Id. at PageID.417; Pltf’s Answer to Interog. 11, 6/18/19 Hrg Exh. B).
Plaintiff alleges that, after the poker game, he went to his girlfriend Shanisha
Wallace’s house, and stayed there until he went to work that day. (Id. at PageID.417,
419). Ms. Wallace has contradicted Plaintiff. She testified in her deposition that she
had broken up with Plaintiff two years earlier and that Plaintiff had not stayed at
her house on November 26 or 27, 2016. (Wallace Dep. at 15, 25, 6/18/19 Hrg Exh. C).
2.

Relevance of, and Efforts to Obtain, Evidence from Plaintiff’s Cell Phone

Forensic analyst Brian Fannon submitted a report and an affidavit that was
filed with Defendant’s motion to compel and for sanctions.

(ECF No. 55-1,

PageID.297-304). In his report, Mr. Fannon noted that he performed a download of
Plaintiff’s cell phone, an iPhone XR, and a download of Plaintiff’s iCloud account on
Yahoo.com.

(ECF No. 55-1 at PageID.297).
8

Through this process, Mr. Fannon

learned that Plaintiff’s iCloud account had been connected to three cell phones in the
past five years:


An iPhone 5s from January 14, 2014, to November 13, 2016;



An iPhone 7 Plus from November 15, 2016, to February 2, 2019; 2 and



An iPhone XR from February 4, 2019, to the present.

(Id. at PageID.298). Mr. Fannon was able to recover only one photograph that was
taken by Plaintiff’s cell phone during the October 29, 2016, to December 24, 2016,
time period set by the protective order – that photograph being irrelevant to the
litigation.

(Id. at PageID.299).

Mr. Fannon determined that approximately 27

photographs were taken during the relevant time period, but later deleted. (Id.).
In his affidavit, Mr. Fannon testified that, on March 7, 2019, Plaintiff produced
one cell phone for analysis – an iPhone XR that was first connected to Plaintiff’s
iCloud account on February 4, 2019. (ECF No. 55-1, PageID.303). The iPhone 7 Plus
that Plaintiff had been using was disconnected from Plaintiff’s iCloud account on
February 2, 2019. (Id.). Mr. Fannon noted that the extraction of Plaintiff’s iPhone
XR and his iCloud account recovered 19,677 images, but only one image was found
for the time period October 29 to December 24, 2016. (Id.). He also noted that 27
photographs taken during the relevant time period had been deleted from the cell

During his June 18, 2019, hearing testimony, Mr. Fannon corrected the information
from this report. He noted that he had later learned that Plaintiff used two iPhone 7
Plus cell phones during the period November 15, 2016, to February 2, 2019, having
replaced one for the other in July 2018. (6/18/19 Hrg Tr. at 57-58, ECF No. 74,
PageID.458).
2

9

phone. (Id. at PageID.304).
During the June 18 hearing, Mr. Fannon testified that he was present during
Plaintiff’s November 13, 2018, deposition to conduct a download of his cell phone, but
he was informed at that time that the download could not be performed because
Plaintiff objected to the procedure.

(6/18/19 Hrg Tr. at 57-58, ECF No. 74,

PageID.445-46). Mr. Fannon stated that, when Plaintiff produced his iPhone XR for
analysis (on March 7, 2019), he did not mention that it had been newly purchased;
nor did Plaintiff provide any information regarding the fact that he had exchanged
the iPhone 7 Plus cell phone he possessed at the time of his deposition for the new
cell phone.

(Id. at PageID.446).

Plaintiff provided the passwords necessary to

retrieve whatever information was on the iPhone XR, including records of phone calls,
text messages, photographs, social media activity, internet browsing history, and
GPS location information. (Id. at PageID.448-49). Mr. Fannon testified to his efforts
to retrieve information from Plaintiff’s iCloud account. He confirmed the results of
the cell phone and iCloud searches, as reflected in his report, including that 27
photographs taken during the relevant time period had been deleted, and that he was
unable to find any text messages and call logs. (Id. at PageID.450-51, 462-63).
Mr. Fannon testified that applications exist to transfer information from one
iPhone to another as a result of a new purchase. (Id. at PageID.452). He noted that,
“if someone wanted to replace their phone . . . they could still preserve the evidence
by using the iCloud to back up that evidence.” (Id. at PageID.468). Mr. Fannon
opined that, if such transfer of information had not been done, and the information
10

had not been backed up to the iCloud, it would be lost. (Id. at PageID.452-53). Mr.
Fannon also opined, based on his analysis, that the information from Plaintiff’s
iPhone 7 Plus had not been transferred to the iPhone XR he acquired on February 4,
2019. (Id. at PageID.454, 457). Accordingly, Mr. Fannon would have to have access
to the iPhone 7 Plus Plaintiff traded in on February 4, 2019, or the iPhone 7 Plus
Plaintiff possessed on the date of the alleged burglary, to recover the deleted
information. (Id. at PageID.463-64).
Plaintiff testified during the June 18, 2019, hearing.

He reiterated his

contention that his home was burglarized on Sunday, November 27, 2016, and that
his jewelry was stolen at that time. (6/18/19 Hrg Tr. at 10, ECF No. 74, PageID. 398).
He acknowledged that his whereabouts on the date of the alleged burglary, as well as
cell phone calls he made and received that day, are significant issues in the case. (Id.
at PageID.400-01). Plaintiff further acknowledged that he had his only cell phone,
an Apple iPhone 7 Plus, with him at all times the weekend of the alleged burglary,
and that he knew it could be used to track his location. (Id. at PageID.404, 410, 419).
He conceded, in fact, that the cell phone he possessed the day of the alleged burglary
may have very important evidence on it. (Id. at 411-12).
Plaintiff acknowledged having received a letter from State Farm, dated
March 14, 2017. In this letter the insurance company sought all records from any
cell phone he used from November 20, 2016, through November 30, 2016, including
call history details, text messages, and cell tower location information. (6/18/19 Hrg
Tr. at 11-12, ECF No. 74, PageID.399-400; 6/18/19 Hrg Exh. A (copy of letter)).
11

In an interrogatory answer, Plaintiff stated that the iPhone 7 Plus cell phone
he possessed at the time of the alleged burglary was stolen.3 (Pltf’s Answer to
Interog. 6, 6/18/19 Hrg. Exh. B; 6/18/19 Hrg Tr. at 18-19, PageID.406-07). But in his
November 13, 2018, deposition, Plaintiff testified that he no longer had that cell
phone because he had dropped it several times, rendering it unusable. (6/18/19 Hrg
Tr. at 18, 21, PageID.406, 409).
As ordered by this Court, Plaintiff obtained and filed a copy of a Jackson City
Police Department report indicating that Plaintiff reported his iPhone 7 cell phone
stolen from his girlfriend’s house on July 23, 2018. (ECF No. 71, PageID.355-56).
According to the report, Plaintiff would not provide the police department with the
names of other persons in the house at the time of the phone’s disappearance, nor did
he want any officer to go to the house.4 (Id. at PageID.356).
By his own admission, Plaintiff is not certain that someone stole his cell phone
in July 2018. (See 7/9/19 Hrg Tr. at 9, ECF No. 73, PageID.367 (“I think it was
stolen.”)). He simply surmises it because he repeatedly looked for the phone and could
not find it – “[it] was missing.” (7/9/19 Hrg Tr. at 7, ECF No. 73, PageID.365).
Plaintiff testified during the June 18, 2019, hearing that, when he replaced his
“stolen” iPhone 7 Plus with another in July 2018, the data from the old phone was

Plaintiff acknowledged that he signed his interrogatory answers under penalty of
perjury. (6/18/19 Hrg Tr. at 14, ECF No. 74, PageID.402).
3

Plaintiff wanted the police department to “ping” his cell phone, but the department
declined, citing “the lack of emergency status of the incident.” (ECF No. 71,
PageID.356).
12
4

transferred to the new. He stated that all the data that was on his iPhone 7 Plus
from November 2016 would be on the iPhone 7 Plus he purchased in July 2018.
(6/18/19 Hrg Tr. at 83, ECF No. 74, PageID.471, 473).
On February 4, 2019, Plaintiff traded in the iPhone 7 Plus he purchased the
previous July for a new iPhone XR. (Apple Eastwood Towne Center Receipt, ECF
No. 71, PageID. 352-54). He paid $749.00 for the new iPhone XR, and he received a
$300.00 trade-in credit for his iPhone 7 Plus. (Id. at PageID.353).
During the June 18, 2019, hearing, Plaintiff testified that he purchased the
new iPhone XR because his iPhone 7 Plus was damaged to the point it was no longer
working. (6/18/19 Hrg Tr. at 44-46, PageID.432-34). Plaintiff specifically noted that
the iPhone 7 Plus had fallen to the floor and that the face of the phone was “cracked
all up.” (Id. at PageID. 434). Plaintiff acknowledged that this iPhone 7 Plus was the
cell phone he had with him at his November 13, 2018, deposition, and which
Defendant sought to access. Plaintiff also conceded that it was the same phone
Defendant’s counsel had advised him to preserve. (Id. at PageID.433).
The Apple store receipt contradicts Plaintiff’s testimony that the iPhone 7 Plus
he traded in was damaged. The receipt indicates that the cell phone was in good
working order. It had “[n]o cracks or LCD fractures,” and it had no more than “surface
scratches that do not affect the touchscreen functionality or readability.” (ECF No.
71, PageID.352).
Nevertheless, and having been confronted with the information on the receipt,
Plaintiff continued to maintain that the iPhone 7 Plus he traded in was “all cracked
13

up.” (7/9/19 Hrg Tr. at 11, ECF No. 73, PageID.369). He dismissed the information
on the receipt, contending: “That’s what every receipt says.” (Id. at PageID.370). He
also contended that the Apple store gave everyone a $300 credit, regardless of the
condition of the cell phone turned in.

(Id. at PageID.371).

Plaintiff admitted,

however, that he had no evidence to support his contentions regarding the purported
inaccuracies on the receipt or the unconditional $300 credit. (Id.). When the Court
offered him an opportunity to obtain evidence from the Apple store to support his
contention that the iPhone 7 Plus was damaged, Plaintiff declined.

(Id. at

PageID.376).
Discussion
The relevance of the information on Plaintiff’s iPhone 7 Plus, which Plaintiff
traded away only three days before the hearing on the motion to compel its
production, is beyond dispute. There are genuine material questions of fact about
Plaintiff’s whereabouts around the time of the alleged burglary, as well as
communications he may have had during the relevant time period. Information from
his cell phone is integral to answering those questions. That the information could
not be obtained from Plaintiff’s iCloud account confirms that fact.
Also undisputed is the fact that Plaintiff was on notice of the need to preserve
the information on his cell phones. He was put on such notice as early as March 2017,
when he received a letter from Defendant seeking all records from any cell phone
Plaintiff used from November 20, 2016, through November 30, 2016, including call
history details, text messages, and cell tower location information. (See 6/18/19 Hrg
14

Exh. A). That notice was renewed through Defendant’s July 26, 2018, discovery
requests, which sought call and texting logs, as well as text messages, for the relevant
time periods.5 (See Def’s Interog. 6(f), (g), 6/18/19 Hrg Exh. B).
But, to the extent there was any question about Plaintiff’s obligation to
preserve the data from his cell phone, it was certainly put to rest at Plaintiff’s
November 2018 deposition. Defendant’s counsel explicitly advised Plaintiff: “[Y]our
phone and phones are evidence. And it’s important that you don’t erase anything,
alter anything, destroy anything electronically or otherwise with regard to the
phones. That’s evidence and needs to be preserved. Okay?” (Pltf’s Dep. at 7-8, ECF
No. 28-1, PageID.125-26).

Plaintiff then confirmed his understanding of that

obligation. (See id. at PageID.126).
Plaintiff’s actions less than three months later in disposing of the iPhone 7
Plus he possessed at the time of his deposition, when Defendant sought to access the
data on that phone, is inexplicable. It is particularly troubling that Plaintiff disposed
of that cell phone three days before the scheduled hearing on Defendant’s motion to
compel production of the data from that phone, and four days after the Court noticed
that hearing. Moreover, plaintiff failed to advise the Court and Defendant’s counsel
of the fact that he no longer had the cell phone that was the subject of the hearing – an
omission of obvious import.

Plaintiff reported the theft of his iPhone 7 Plus cell phone three days before being
served with these discovery requests.
15
5

Plaintiff’s account of his actions in disposing of the iPhone 7 Plus on
February 4, 2019, is simply not credible.

It is, in fact, implausible.

Plaintiff’s

contention that the iPhone 7 Plus was broken and unusable is belied by the Apple
store receipt, which indicates that Plaintiff traded in an undamaged and fully
functional iPhone 7 Plus for which the store agreed to pay him $300. Plaintiff’s
unsupported contention that an Apple store employee falsely represented the
condition of the iPhone 7 Plus cell phone on the receipt, not to mention that the store
would pay $300 for an unusable phone, defies logic. Regardless, Plaintiff had a duty
to retain the iPhone 7 Plus cell phone – operational or not – until the Court had an
opportunity to rule on the motion to compel.
It is uncertain whether Plaintiff retains – or regained – possession of the
iPhone 7 Plus he reported stolen in July 2018. He has little credibility concerning
the whereabouts and disposition of any of his cell phones. It is also unclear whether
Plaintiff retains any of the data – in any form and on any medium – from either of
his iPhone 7 Plus cell phones.
What is clear is that Defendant’s motion to compel (ECF No. 55) is wellfounded. Accordingly, the Court will grant the motion and order Plaintiff to produce
any cell phone he used during the period November 20, 2016, through the present.
The Court will also order Plaintiff to: (1) expend all reasonable efforts to regain
possession of these cell phones to the extent they are no longer in his possession,
(2) produce any other medium that may contain data from any of these cell phones,
and (3) identify any and all locations, including but not limited to websites and cloud16

based or other data storage services, where data from the phones in question may be
located.
Moreover, Rule 37(a) provides that, when a motion to compel is granted, “the
court must, after giving an opportunity to be heard, require the party . . . whose
conduct necessitated the motion . . . to pay the movant’s reasonable expenses incurred
in making the motion, including attorney’s fees.” F ED R. CIV. P. 37(a)(5)(A). The rule
contains three exceptions to this mandate, see FED R. CIV. P. 37(a)(5)(A)(i)-(iii), none
of which apply in this case. Accordingly, the Court will sanction Plaintiff in the form
of awarding Defendant its reasonable costs in bringing the instant motion to compel
(ECF No. 55), to include attorney’s fees and the costs of the forensic analyst Brandon
Fannon.
Defendant seeks sanctions against Plaintiff for violating the Court’s
February 7, 2019, order compelling Plaintiff to produce his phone for forensic
analysis.

Defendant contends that implicit in that order is a requirement that

Plaintiff produce the cell phone that was in his possession at the time the motion to
compel was filed. There is logic to that contention. But the Court will deny this part
of the motion, choosing to give Plaintiff the benefit of the doubt on this issue. Plaintiff
did produce the cell phone he possessed at the time the Court issued its order, so he
is technically in compliance with that order.
While Plaintiff may not technically have violated this particular order, he
nevertheless violated the spirit of the Court’s order as well as intentionally violated
his discovery obligations by disposing of the iPhone 7 Plus cell phone, to the detriment
17

of Defendant.

Defendant reasonably sought to examine Plaintiff’s cell phone to

retrieve data relevant to Plaintiff’s whereabouts and communications for the time
period surrounding the alleged burglary of Plaintiff’s home. When Plaintiff refused
to allow that examination on the date of his deposition, Defendant successfully sought
a Court order compelling that examination.

By Plaintiff’s own admission, the

information from the cell phone he possessed at the time of the alleged burglary had
been transferred to that iPhone 7 Plus.
The Court now knows that, due to Plaintiff’s actions in disposing of that cell
phone (and apparently not backing up that phone to Plaintiff’s iCloud account),
Defendant was deprived of the benefit of that Order. Plaintiff’s failure to advise
Defendant and the Court of those facts also resulted in an unnecessary hearing
addressing the issues in the motion to compel, and in the useless expenditure of fees
to have a forensic expert examine a device Plaintiff knew did not contain the
information that was the subject of the motion to compel. Plaintiff’s conduct evinces
bad faith.
This Court has the inherent authority to sanction parties for engaging in badfaith conduct. In Goodyear Tire & Rubber Co. v. Haeger, the Supreme Court held:
Federal courts possess certain “inherent powers,” not conferred by rule
or statute, “to manage their own affairs so as to achieve the orderly and
expeditious disposition of cases.” That authority includes “the ability to
fashion an appropriate sanction for conduct which abuses the judicial
process.”
137 S. Ct. 1178, 1186 (2017) (quoting Link v. Wabash R. Co., 370 U.S. 626, 630-31
(1962) and Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991), respectively).
18

Among the permissible sanctions is an assessment of attorney’s fees and
costs – an order requiring the party who has acted in bad faith to reimburse the legal
fees and other costs incurred as a result of the bad faith conduct. See Haeger, 137
S. Ct. at 1186. The Supreme Court cautions, however, that such sanctions when
imposed in civil litigation must be compensatory and not punitive in nature. See id.
Accordingly, only those fees and costs that are actually caused by the misconduct are
compensable. In other words, the Court should apply the “but-for” test. See id.
Applying that test to the facts of this case, the Court will sanction Plaintiff by
awarding Defendant its reasonable costs associated with its efforts, after February 4,
2019 (the date Plaintiff disposed of his iPhone 7 Plus) to compel production of the
data from Plaintiff’s cell phones. These costs shall include attorney’s fees and the
fees and expenses associated with Mr. Fannon’s forensic analysis of Plaintiff’s iPhone
XR and his iCloud account.

To the extent these costs duplicate those awarded

pursuant to Rule 37(a)(5)(A), above, they shall be excluded from this sanction.
Defendant’s request to dismiss this case as a spoliation sanction pursuant to
Rule 37(e)(2)(C) will be denied. While the Court finds that Plaintiff intentionally
disposed of his iPhone 7 Plus on February 4, 2019, to avoid his discovery obligations,
and while his actions were egregious, dismissal is unwarranted given the lack of
previous sanctions or warnings. See Bentkowski v. Scene Magazine, 637 F.3d 689,
697 (6th Cir. 2011) (when fashioning a sanction for failure to cooperate in discovery,
the Court must consider several factors including whether the party was warned that
failure to cooperate could result in dismissal and whether less drastic sanctions were
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previously imposed, also keeping in mind that dismissal of an action for failure to
cooperate in discovery is a “sanction of last resort”).
As for Defendant’s request for a spoliation jury instruction under
Rule 37(e)(2)(B), the undersigned judicial officer defers to Chief Judge Jonker. Jury
instructions are best left to the trial judge.
Conclusion
For the foregoing reasons, Defendant’s motion to compel and for sanctions
(ECF No. 55) will be granted in part, denied in part, and dismissed in part. The
motion to compel will be granted, and the Court will compel production of Plaintiff’s
cell phones, any medium containing data from those phones, and the identity of any
location where data from the phones in question may be located.
The motion for sanctions will be granted to the extent that the Court will award
reasonable costs, including attorney’s fees, associated with the filing of the motion,
as well as the reasonable expenses incurred by Defendant after February 4, 2019, in
an effort to compel production of the relevant data from Plaintiff’s cell phones. The
motion for sanctions will be dismissed without prejudice regarding the request for a
spoliation jury instruction. The motion for sanctions will be otherwise denied.
Date: November 14, 2019

/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge

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