Transamerica Life Insurance Company, Inc. v. Lambert et al

Filing 95

MEMORANDUM AND ORDER ( SEE ORDER FOR COMPLETE DETAILS IT IS HEREBY ORDERED that defendant/crossclaim plaintiff Lisa Lamberts SecondMotion to Compel Production from defendant/crossclaim defendant Jennifer Rios is GRANTEDas follows: [Doc. 77]. Signed by District Judge Charles A. Shaw on 8/7/13. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TRANSAMERICA LIFE INSURANCE
COMPANY, INC.,
Plaintiff,
v.
LISA LAMBERT, et al.,
Defendants.

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No. 4:12-CV-1253 CAS

MEMORANDUM AND ORDER
This matter is before the Court on defendant/crossclaim plaintiff Lisa Lambert’s Second
Motion to Compel Production from defendant/crossclaim defendant Jennifer Rios (“Rios”).
Lambert, individually and as next friend for plaintiffs MBC, CAC, CBC, KRC and CSC
(“Lambert”), moves to compel Rios to produce a computer and a cellular telephone that were used
by decedent Craig A. Cornett between November 1, 1995 and the time of his death, as requested in
Lambert’s second Request for Production Nos. 1 and 2, by shipping those devices to St. Louis,
Missouri at Lambert’s expense for forensic examination. Rios opposes the motion and it is fully
briefed.
Rios responded to Lambert’s Request for Production by stating that the computer and cell
phone would be made available for inspection at the office of her attorney in Jonesboro, Arkansas.
Lambert moves to compel Rios to ship the devices to St. Louis instead, asserting that Rios’s offer
of production presents undue burden and expense to Lambert.

The motion to compel is

accompanied by the affidavit of a digital forensics technician which states that travel to Arkansas
would increase the cost of examining the computer and cell phone by approximately $2,400, and that

if the devices were shipped to St. Louis, they could be returned to Jonesboro, Arkansas within fortyeight hours of their receipt in St. Louis.
Rios opposes the motion to compel, asserting that she would be unduly burdened if required
to ship the devices to St. Louis, because they are her only computer and telephone. Rios also asserts
that there are text messages on the cell phone between herself and her attorney, and among herself,
her co-defendants Teresa Roths and Ruth Cornett, and their attorney, which would be protected by
the attorney-client privilege. Finally, Rios states that she downloaded each text message to or from
Craig Cornett that remained on the cell phone and sent those to Lambert’s counsel by email and hard
copy, and had a computer company make a copy of the computer’s hard drive and sent that to
Lambert’s counsel. Rios contends that because Lambert’s request did not specify a form or forms
of production for electronically storied information, she is only required to produce it in a form that
is reasonably usable, and that she has done so.
Lambert initially replies that (1) ownership of the computer and cell phone are in dispute in
a probate matter pending in the Circuit Court of St. Charles County, Missouri; and (2) Rios’s
response to the Request for Production was due on June 28, 2013 under Rule 34, Federal Rules of
Civil Procedure, but it was not served until July 10, 2013 and did not include any objection to the
production requests, so any objection is waived. Lambert also states that before she requested
production of the physical telephone and computer, Rios stated in her response to Lambert’s first
request for production of documents that she was not in possession of any documents or
correspondence between herself and Craig Cornett, including emails, instant messaging messages,
or text messages, but now it is clear that at least 250 pages of text messages were in Rios’s
possession throughout the pendency of this matter.

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Lambert states that because she requested production of tangible things, the computer and
cell phone, Rios’s production of copies of text messages and a copy of the hard drive fails to comply
with the requests. Lambert contends that she cannot ascertain whether all text messages have been
provided or if others have been deleted without an examination of the cell phone itself. Lambert
also asserts that the data contained on a USB flash drive produced by Rios was not copied in a
forensically sound manner, and does not contain a forensic image of the computer system or permit
a detailed forensic analysis of the computer system from which it was obtained. Lambert provides
the affidavit of its forensic computer technician which states that the form of the data provided will
not allow for an analysis of any items which may have been deleted either prior to or after the death
of Craig Cornett, and will not allow for a determination of the existence of other information on the
computer that was not voluntarily provided.
The Court finds that Lambert’s motion to compel should be granted. Rios’s production of
copies of cell phone text messages and a non-forensic copy of the computer hard drive are
insufficient to respond to Lambert’s second request for production of the cell phone and computer
themselves, as the copies provided do not allow for forensic examination of the devices. The Court
acknowledges that Rios will suffer some inconvenience by not having access to the cell phone and
computer for a period of time, but finds that this inconvenience is outweighed by the significant
additional expense Lambert would incur if she were required to examine the devices in Jonesboro,
Arkansas. The Court will order Lambert to have the forensic examinations conducted as soon as
possible, and to return each device as soon as its examination has been completed.
Rios’s assertion of attorney-client privilege with respect to text messages and emails will be
protected by implementation of the parties’ Joint Suggestions for Limitations or Protections with

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Respect to Attorney/Client Privileged Texts or Emails, submitted in response to the Court’s Order
of August 2, 2013.
Accordingly,
IT IS HEREBY ORDERED that defendant/crossclaim plaintiff Lisa Lambert’s Second
Motion to Compel Production from defendant/crossclaim defendant Jennifer Rios is GRANTED
as follows: [Doc. 77]
1. Rios shall produce the computer and cellular telephone identified in her response to
Lambert’s second Request for Production, which Rios represents was done on August 6, 2013.1
2. Lambert’s forensic technician shall examine the computer and cellular telephone as soon
as possible, and shall return each device by Federal Express or by hand delivery as soon as its
examination has been completed. Rios shall inform Lambert whether the devices should be returned
to Rios directly, or to her counsel. If the former, Rios shall provide Lambert with the address to
which the devices should be returned.
3. Rios’ assertion of attorney-client privilege with respect to text messages shall be protected
as follows:
Applicable only to text messages sent or received after the date of Craig Cornett’s death on
May 2, 2012, to exclude any and all text messages between crossclaim defendants’ counsel Bill
Stanley ([phone]) and any one or all of the crossclaim defendants, whose telephone numbers
were provided in response to Interrogatory No. 8 propounded on each of them (i.e., Jennifer Rios
– [phone] and [phone]; Teresa Roths – [phone]; and Ruth Cornett – (479)
790-1340), PROVIDED, however, that no other telephone number(s) appears in the “to,” “from,”

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See the parties’ Joint Suggestions for Limitations or Protections with Respect to
Attorney/Client Privileged Texts or Emails at 2, ¶ 4 (Doc. 93).
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“cc” or “bcc” fields. The inclusion of any telephone number other than those listed in any text
message shall result in disclosure and review of the same as well as any attachments thereto.
4. Rios’ assertion of attorney-client privilege with respect to emails shall be protected as
followed:
Applicable only to emails sent or received after the date of Craig Cornett’s death on May 2,
2012, exclude any and all emails between crossclaim defendants’ counsels’ email addresses
([e-mail];

[e-mail];

[e-mail];

and/or

[e-mail]) and any one or all of crossclaim defendants, whose email addresses
were provided in Response to Interrogatory No. 7 propounded on each of them (i.e., Jennifer Rios
- [e-mail]; Teresa Roths – [e-mail]; and/or Ruth Cornett –
[e-mail]), PROVIDED, however, that no other email address(es) appear(s)
in the “to,” “from,” “cc” or “bcc” fields. The inclusion of any email addresses other than those listed
in any email message shall result in disclosure and review of the same as well as any attachments
thereto.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 7th day of August, 2013.

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