Defendant's Wife Must Turn Over Backed-Up iPhone

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Oct. 22 — A wife must turn over her iPhone for forensic review after an examination of her defendant husband's laptop showed information belonging to the plaintiff was probably among data backed up from the wife's iPhone, the Western District of Kentucky held Oct. 19.

Brown Jordan International Inc. and co-plaintiffs sued Christopher Carmicle for various claims, including violations of the Computer Fraud and Abuse Act and the Stored Communications Act. Pursuant to a joint stipulated order, Chris Carmicle's electronic devices and storage sites were forensically examined. Based upon the exam, the Brown Jordan parties believe that Chris Carmicle's wife's iPhone contained relevant information. The plaintiffs subpoenaed the wife for her iPhone, to which she objected. The plaintiffs then moved to compel.

The court agreed that the information sought from the wife's iPhone appeared to be relevant. A review of Carmicle's Macbook Air laptops showed that Brown Jordan data had been transferred through the laptop via an iTunes backup file on the wife's iPhone. In addition, Carmicle testified he may have used her old iPhone.

The wife argued the information was not on her iPhone, but the court said it was skeptical of that argument because the plaintiffs could not refute the assertion without examining her phone, and issues of spoliation had already been raised in the litigation.

“While [Mrs. Carmicle] notes that the iPhone was purchased in December 2014, that fact alone—even if true—would not be determinative of whether there was any relevant information on the iPhone,” the court said. “When a new iPhone is purchased, it is very common for the old unit to be backed up, and then the backup is used to transfer the information from the old unit to the new iPhone.”

The court determined that any burden to the wife would be minimal as the review could be conducted in less than a day. The court granted the motion.

Judge Greg N. Stivers wrote the order.

Stoll Keenon Ogden PLLC in Louisville, Ky., represented the Brown Jordan parties. Ackerson & Yann PSC in Louisville, Ky., represented Carmicle's wife.

The full text of Brown Jordan Int'l Inc. v. Carmicle is available at

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