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Hardy v. UPS Ground Freight, Inc.

United States District Court, D. Massachusetts

July 22, 2019

ARTHUR HARDY, Plaintiff,
v.
UPS GROUND FREIGHT, INC., Defendant.

          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

         I. Introduction

         Plaintiff 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.

         II. Background and Procedural History

         Plaintiff began working for Defendant as a mechanic in December 2010 (Am. Compl. ¶ 5 at 2).[1] 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).[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).

         On April 9, 2018, Defendant asked Plaintiff to produce the following:

• 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 the complaint.

         (Dkt. 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.

         (Dkt. No. 65-1 ¶ 20 at 8).

         Defendant 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).

         Speculating 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 evidence.

         Plaintiff 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 ...


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