United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION
TO COMPEL FORENSIC IMAGING OF PLAINTIFF'S CELL PHONE
(DKT. NO. 65)
KATHERINE A. ROBERTSON, UNITED STATES MAGISTRATE JUDGE
Arthur Hardy (“Plaintiff”) alleges that his
former employer, Defendant UPS Ground Freight, Inc.
(“Defendant”), violated Mass. Gen. Laws ch. 151B,
§ 4(4) and (4A) by retaliating against him for
complaining about racial discrimination in the workplace.
After Plaintiff responded to Defendant's discovery
requests and testified during a deposition on September 11,
2018, Defendant alleged that Plaintiff deleted or failed to
produce certain text message exchanges with Defendant's
current or former employees and moved to compel forensic
imaging of Plaintiff's cell phone in order to recover the
communications (Dkt. No. 65). Plaintiff opposes
Defendant's motion to compel production of a complete
forensic image of his cell phone (Dkt. No. 73). After hearing
and consideration of the parties' submissions,
Defendant's motion for forensic imaging of
Plaintiff's cell phone is DENIED for the reasons stated
in court and for those set forth herein.
Background and Procedural History
began working for Defendant as a mechanic in December 2010
(Am. Compl. ¶ 5 at 2). Plaintiff alleges that he first
complained to his supervisors about racial harassment in
September 2013. Thereafter, he complained to Defendant's
Human Resources Department, and, dissatisfied with
Defendant's response, filed a charge of discrimination
with the Massachusetts Commission Against Discrimination
(“MCAD”) in July 2014. He withdrew his MCAD
charge in October 2015 and filed a state court complaint (Am.
Compl. ¶¶ 8-12 at 2). He alleges retaliation for
protected activity in the form of unwarranted disciplinary
notices beginning in or around November of 2015 and
culminating in the termination of his employment on or around
February 19, 2019 (Am. Compl. ¶¶ 14-28). After
starting the process at the MCAD, he initiated the instant
action in state court on October 19, 2017 (Dkt. No. 1 at 2).
Defendant removed the case (Dkt. No. 1).
April 9, 2018, Defendant asked Plaintiff to produce the
• Any and all documents, including, without limitation,
all notes, summaries, journals, minutes, e-mails, and/or
memoranda, concerning any communications, discussions,
conversations or meetings [he] had with anyone now or
formerly employed by UPS concerning any of the allegations in
No. 65-1 ¶ 8 at 6).
• Any and all documents or other records, including but
not limited to, recordings of any kind, emails and text
messages, or instant messaging, evidencing communications
between [him] and any other current or former employee,
supervisor, manager, or agent of Defendant related to your
Complaint or this Litigation.
No. 65-1 ¶ 20 at 8).
claims that Plaintiff failed to produce all the requested
materials and grounds its motion to compel a forensic image
of Plaintiff's cell phone in portions of Plaintiff's
deposition testimony (Dkt. No. 65 at 1). During
Plaintiff's deposition, he testified that he exchanged
text messages with several current or former employees of
Defendant about various topics (Dkt. No. 65-2 at 6).
According to Plaintiff, these text messages exchanges
included an exchange “a long time ago” with Scott
Moore (“Moore”), a current employee of Defendant,
about an inspection of tie-rods on a vehicle (Dkt. No. 65-2
at 13). Plaintiff indicated that he no longer had the text
messages he exchanged with Moore (Dkt. No. 65-2 at 13).
that Plaintiff might have exchanged other text messages with
other of Defendant's employees that have not been
disclosed or produced, Defendant seeks a forensic image of
Plaintiff's cell phone to: “(1) ascertain the scope
of discoverable but allegedly withheld information; (2)
obtain clear and reviewable copies of relevant text messages;
and (3) recover [allegedly spoliated] text messages”
(Dkt. No. 65 at 5). In response, Plaintiff represents that,
except for the messages he exchanged with Moore, he has
produced screenshots of all relevant, responsive text
messages without any redactions (Dkt. No. 73 at 2). Beyond
speculation and Plaintiff's loss of the Moore text
messages, Defendant has not articulated a basis for an
accusation that Plaintiff may have engaged in spoliation of
opposes Defendant's motion on the bases that Defendant
has not established the relevance of the entire contents of
his cell phone to any claim or defense in the case, that the
potential invasion of his privacy outweighs any benefit a
forensic examination of his cell phone might have, and that a
forensic image of the entire contents of ...