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July 11 — A federal district court recently denied without prejudice a motion by two former employees to inspect the mobile phones provided to other employees by their employer for evidence of racial discrimination and a hostile work environment because the motion was overly broad and the requested implicated privacy interests in mobile phones.
“The implication of the individual defendants' privacy interests in the data stored on their cell phones also persuades the Court to deny plaintiffs' motion,” Magistrate Judge Holly B. Fitzsimmons of the U.S. District Court for the District of Connecticut wrote in the court's June 26 opinion.
The court said its conclusion was “further reinforced” by the U.S. Supreme Court's ruling in Riley v. California, Nos. 13-132 and 13-212, 2014 BL 175779 (June 25, 2014), “which recognized, albeit in the criminal context, the privacy concerns implicated by the modern cell phone.”
“Bakhit shows that the Supreme Court's decision in Riley, finding a ‘weighty' privacy interest in a personal smartphone, will influence civil cases involving access to information on personal smartphones even though Riley arose in the criminal context,” Philip L. Gordon, shareholder at Littler Mendelson PC, in Denver, told Bloomberg BNA July 11. Gordon is a member of the Privacy & Security Law Report's advisory board.
Following Riley, “judges likely will be less receptive to overbroad civil discovery requests like the one in Bakhit, which sought unlimited discovery of six years of cell phone data, and possibly more sympathetic to claims based on unauthorized access to smartphones,” Gordon said.
“For this reason, employers will need to be particularly cautious before searching an employee's personal smartphone in connection with any workplace investigation,” he said.
Plaintiffs Yosif Bakhit and Kiyada Miles sued Safety Marking Inc., alleging race discrimination and hostile work environment on the basis of race.
The plaintiffs sought to inspect the data on the mobile phones of several Safety Marking employees on the premise that those employees sent racist text messages and jokes via their phones. The motion sought all texts, e-mails and other information stored or deleted from the phones, as well as metadata, and included a process to also retrieve phone and text records from the employees' cellular service providers.
The defendants agreed to the production from the service providers, but they objected to the inspection of the mobile phones.
Although the information sought may be relevant to the claims, the inspection request was overly broad and too intrusive, the court said.
According to the court, Bakhit and Miles failed to pursue other avenues to obtain similar information, and they had yet to find out what information would be gleaned by the service providers' production.
The district court also pointed to Riley's recognition that mobile phones collect many types of information in one place, thus allowing the possibility of revealing more information than one record by itself, and a mobile phone's large storage capacity.
The Supreme Court also recognized that some types of information are “ ‘qualitatively different' ” on a mobile phone. “In this regard, the Supreme Court points to an internet search and browsing history that may reveal an individual's private interests and concerns, such as ‘symptoms of disease, coupled with frequent visits to WebMD,' ” the district court said.
“Indeed, this is precisely the information that may be implicated by plaintiffs' search of the individual defendants' cell phones and with what the Court takes issue,” the district court said.
Lewis Chimes in Stamford, Conn., represented Bakhit and Miles. Gordon & Rees LLP represented Safety Marking.
With the assistance of Katie Johnson in Washington
To contact the reporter on this story: Tera Brostoff in Washington at firstname.lastname@example.org
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Full text of the court's opinion is available at http://www.bloomberglaw.com/public/document/Bakhit_v_Safety_Marking_Inc_CIV_NO_313CV1049_JCH_2014_BL_178367_D.
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