Author – Ronald J. Hedges

This is the first in a series of posts that will explore various aspects of data from cell phones. As an introduction I would like to “set the stage” by describing a series of facts that all subsequent posts will examine from the viewpoint of a court that must apply legal principles to the facts. Here’s the description:

‘X’ is employed by a corporation. She was issued the latest version of a cell phone by the corporation (“the corporate phone”). X had a choice between accepting the corporate phone and using it exclusively for business purposes while keeping an earlier model cell phone she owned (“the personal phone”) or merging the data from the personal phone into the corporate phone. She chose the latter because she did not want to carry two phones. When she made the choice, X signed a document by which she acknowledged that the corporate phone and all content was the property of her employer.

Consider these to be the basic facts for this and each upcoming post.


Assume that X is a supervisor. She found herself in the middle of a heated dispute between two salespersons she supervised. The dispute led to a very unpleasant verbal exchange between the two in the presence of a valued customer. The customer complained and the corporation decided to demote one salesperson as a sanction for what it determined was his belligerent behavior. That salesperson (“the plaintiff”) sued the corporation in a United States district court and alleged that the real reason for the demotion was his age (62). In discovery, the plaintiff’s attorney demanded that the corporation produce all text messages and email between X and both salespersons and between X and management. The attorney alleged that the communications would show that X attributed the verbal exchange to the younger salesperson, that the plaintiff did nothing wrong, and that X so advised management.

What might a judge do?

A judge would likely grant the plaintiff’s request. Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery in the United States district courts. It provides:

Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

A judge would first consider whether the information sought is relevant to a claim or defense. The answer is likely to be “yes” because the text messages and email may prove or disprove the plaintiff’s allegation that the reason offered by the corporation was a pretext for age discrimination. The text messages and email might also prove or disprove the corporation’s defense that the demotion was based on the plaintiff’s behavior. Once relevance is shown Rule 26(b)(1) requires a judge to consider whether the discovery sought is “proportional to the needs of the case.” That consideration is guided by the factors set forth in the Rule 26(b)(1). There are not enough facts to guide that determination. However, as an example, assume that there is no time limit on the information sought. The judge might impose one to prevent “rummaging” through X’s communications. Moreover, assuming that the text messages or email include information that is discoverable but may be, for example, “private” or embarrassing, the judge might issue a protective order pursuant to Rule 26(c). Such an order could limit access to the information to the plaintiff’s attorney and prohibit that attorney from sharing the information with anyone else, including the plaintiff. Join us here next week to hear more about BYOD, X and a potential Criminal Investigation.