In Re: 3M Combat Arms Earplug Products Liability Litig.

In this multidistrict litigation, the court considered Defendants’ Motion to Compel Forensic Analysis of Plaintiff’s mobile device. The plaintiff in a multidistrict bellwether case, had retained a litigation support firm to collect relevant data from his social media accounts and mobile phone and produced the information t the Defendants. However, at his deposition, the plaintiff testified that he had communicated with three individuals through Facebook and text messages and that he had produced those messages. In fact, he had not produced such messages. His counsel later asserted that the plaintiff did not know whether the messages were deleted and that his client “indicated he has always tended toward deletion of text and message chains once the discussion is complete.” The Defendants then requested that the court appoint a neutral expert to conduct a full forensic examination of the plaintiff’s iPhone to attempt to recover deleted messages and metadata relating to the deletions

The primary issue is whether the discovery requested by Defendants was proportional to the need of the case.

The court also considered sub-issues stemming from three arguments that the Defendants advanced to show a compelling need for a neutral forensic

• First, will the examination ensure the initial collection of data from the mobile device was complete?
• Second, will the collected data either establish or refute the Plaintiff’s pattern of deleting messages?
• Third, is there a compelling need for the examination to attempt to locate fragments of deleted text and Facebook messages?

Defendants’ Motion to Compel Forensic Analysis of the Plaintiff’s mobile device was denied by the court. The court refused to compel the full forensic examination because the initial ESI collection by the plaintiff’s expert was “reasonable, consistent with industry standards and appropriate…” The court additionally reasoned that Defendants failed to satisfy Rule 26(b)(1)’s proportionality prong because Defendants’ only demonstrated a mere possibility, not a reasonable likelihood that a forensic examination would locate the content of deleted messages or even when the messages were deleted.

In response to Defendants’ first argument, the court found that there was no dispute that Plaintiff’s initial ESI collection complied with Pretrial Order No. 42. The neutral full forensic examination was not required, in particular, because Plaintiff did not attempt to retrieve ESI for production without assistance.

In response to Defendants’ second argument, the court found that Defendants failed to show that a forensic examination of the Plaintiff’s phone would produce data relevant to establish or refute the existence of a pattern of message deletion. The court made this determination based on the fact that even if the the full forensic examination revealed deleted text messages the examination would “not show anything to document when text messages were deleted, why they were deleted, the contents of the deleted text message, or the pattern, if any, of the user in deleting messages.

The briefings in this case are sealed and not available on PACER.

Finally, in considering Defendants’ third argument, the court held that the examination requested by Defendants is not proportional to the needs of the case. Although Defendants may have shown that there was some possibility that a full forensic examination might recover “fragments” of deleted messages, there was not a high likelihood that the content of the messages could be recovered from the fragments. In this court’s view, recovery of the full text was not highly probable, and thus, not sufficient to “justify compelled intrusion on the [Plaintiff’s] privacy.” Therefore, the forensic examination would have been disproportionate to the slight importance of the potential discovery.