In Legendary Foods, LLC v. Simply Good Foods USA, Inc. parties engaged in a discovery dispute regarding the preservation of electronically stored information in a trade secret misappropriation lawsuit. Legendary Foods requested that the court require forensic imaging of personal cell phones used by certain Simply Good Foods (“SGF”) employees for business purposes, arguing that this step was necessary to preserve potentially relevant data. SGF opposed the request, citing privacy concerns and the lack of evidence that these devices contained relevant information.
The court evaluated the request under Federal Rules of Civil Procedure 26 and 37, focusing on relevance, proportionality, and privacy considerations. In particular, the court cited the six factors under Rule 26(b)(1) to be considered when determining if the proportionality requirement has been met, namely, the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to the 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. The court also weighed the privacy concerns associated with having one’s cell phone imaged, stating “These devices capture nearly every aspect of a person’s life – from the goofy to the sublime, from financial data to cherished memories. Indeed, for many, their personal cell phone is perhaps the single most comprehensive repository for sensitive individual information – including personal contacts, photographs, passwords, boarding passes, banking applications, social media posts, biometric data, on-line purchasing information, medical histories, romantic communications, voicemails from deceased loved ones, and yes, even communications related to one’s work.”
Considering these factors, the court granted the request in part, allowing forensic imaging of personal cell phones for three former SGF employees who are named parties in the litigation, as their devices may contain relevant information. However, the court denied the request for imaging other SGF employees’ personal devices, emphasizing the significant privacy concerns and the lack of proportionality. Instead, these custodians may provide certifications stating they did not use their personal devices for business communications during their tenure. This decision highlights the importance of balancing the need for discovery with privacy rights and underscores the cautious approach courts take when dealing with personal devices in eDiscovery.
If your organization is seeking support with eDiscovery, our team has solutions to address all phases of the discovery process. At CODISCOVR, we deliver client-focused, defensible, and scalable solutions using advanced technology and intelligent review practices to meet eDiscovery, document review, and information governance needs in a manner that reduces the risks and costs associated with electronically stored information (ESI). Reach out to Nicole Gill, Chair, Managing Member, CODISCOVR. With almost a decade of experience, she manages complex and high-profile eDiscovery projects and routinely navigates data and privacy protection laws across many domestic and foreign jurisdictions.
