Case Law

A Tale of Two Phones: Court Forbids “Fishing Expedition” for Deleted Personal Data on Employer-issued Cell Phone, but Authorizes Discovery of Relevant Data from Personal Cell Phone


Tingle v. Hebert, 2017 U.S. Dist. LEXIS 88936 (M.D. La. June 8, 2017) In this wrongful termination case, the defendant brought a motion to compel, requesting that the plaintiff produce email and text messages sent or received on his personal cell phone and through his personal email accounts, as well as information that the plaintiff deleted from his employer-issued cell phone prior to returning it to his employer. The court found that while the defendant’s requests for “all text messages” and “all e-mail messages” were not proportional to the needs to the case, communications on the plaintiff’s personal cell phone were potentially relevant in this case. As such, the court limited the scope of discovery on the plaintiff’s personal phone and email accounts to the pertinent time period giving rise to the issues in this case, protecting confidential information via a protective order. Additionally, the court found that the defendant’s requests for deleted information on the plaintiff’s company issued phone appeared to be a “fishing expedition”. The court pointed to the plaintiff’s deposition where he stated that he deleted private information from the company phone such as communication between family members and banking information. The plaintiff stated that he did not delete any communications between himself and former co-workers. As such, the court found that the defendant’s requests for deleted data would produce irrelevant information. However, the court did order the production of communications deleted by the plaintiff on his employer-issued cell phone that were exchanged with former co-workers during the pertinent time period and referencing the issues in the case.

Keywords: text messages, email, mobile phone, personal cell phone, deleted data, scope of discovery, FRCP 26(b)(1)