United States District Court, N.D. Illinois, Eastern Division
R. Wood, District Judge.
MEMORANDUM OPINION AND ORDER
Jeffrey Cummings, United States Magistrate Judge.
the Court is defendants United Airlines, Inc.'s and James
Simons' (“defendants”) renewed motion to
compel plaintiff Christopher Belcastro
(“Belcastro”) to submit to a forensic examination
of his electronic devices. (Dckt. 137). Defendants filed a
prior motion to compel on August 7, 2019 but withdrew it one
week later. (Dckt. 131). The Court rules on these motions
under District Judge Andrea R. Wood's referral for a
decision pursuant to N.D.Ill. Rule 72.1. (Dckt. # 99). Based
on the parties' briefs and an oral hearing on December
12, 2019 the Court finds that defendants' motion is
granted in part and denied in part.
March 15, 2017, Belcastro resigned from his position as a
probationary pilot with United Airlines by submitting a
resignation letter to Chief Pilot James Simons. See
Belcastro v. United Airlines, Inc., No. 17 C 1682, 2019
WL 1651709, at *1-2 (N.D.Ill. April 17, 2019) (outlining the
allegations involved in Belcastro's resignation from
United). On March 2, 2017, Belcastro brought this action
alleging inter alia race discrimination under Title
VII, 42 U.S.C. § 2000e et seq., and defamation.
Belcastro alleges that United defamed him by causing “a
snapshot of Belcastro's employment file, of which only
United had access, to be posted to the website
airlinepilotcentral.com.” (Dckt. 54 at ¶ 29).
Belcastro clarified this allegation at his deposition. He
testified that a pilot for another airline informed him
sometime after he resigned that his employment file had been
posted on airlinepilotcentral.com and that it incorrectly
stated that Belcastro had been terminated. The file had been
posted from a cell phone, had a time stamp on it, and had
been highlighted in blue. (Dckt. 149, Ex. A at p. 60).
the parties' dispute in this matter concerns the
retrieval of this text. Belcastro stated in his discovery
responses that he regularly backed up the iPhone to which the
text was sent to his laptop computer. The computer, however,
failed in August 2016 and Belcastro purchased a new laptop
from Best Buy. He also purchased an external hard drive on
which Best Buy was able to transfer some of the information
from Belcastro's old computer. The recovered data - which
receipts later showed amounted to 387 GB - was then
transferred to Belcastro's new computer. In addition,
Belcastro purchased a new iPhone in November 2017,
transferred data from his prior phone to the new one, and
left the older iPhone with Best Buy as a trade in. Despite
that direct transfer of data, Belcastro claims that he
“does not have access to text messages to his prior
phone sent or received before May 31, 2017.” (Dckt. 149
at Ex. C).
November 28, 2018, Belcastro sat for his deposition. Some of
his testimony was internally inconsistent and conflicted with
other evidence that subsequently came to light. Belcastro
said that he had the text message his friend sent him even
though he could no longer locate the website image that
accompanied it. In addition, his counsel claimed that the
text had already been produced to defendants. Belcastro later
testified, however, that he did not have the text
message. (Dckt. 149, Ex. A at pp. 123-24, 147). He also
stated that he traded in his prior iPhone in November 2016
and did not preserve any relevant data from it because he was
not contemplating filing a lawsuit at that time.
(Id. at p. 66). In reality, the phone was traded for
a new iPhone in November 2017 - six months after
this action was filed on March 2, 2017. Belcastro claimed in
his July 15, 2019 interrogatory responses that he had
produced all relevant non-privileged data from his laptop,
cell phone, and hard drive. (Dckt. 149 at Ex. C). Defendants
point out, however, that documents continued to be produced
after that statement was made. Indeed, plaintiff's
counsel conceded at the December 12, 2019 hearing that
hundreds of documents had been turned over after the instant
motion was filed and that some had been produced the morning
of the hearing.
defendants withdrew their earlier motion to compel, the
parties began negotiations on a forensic search protocol
(“the Protocol”) setting out the terms for a
third-party exam of Belcastro's electronic devices. The
Protocol identifies the specific devices to be examined,
proposes 130 search terms, and sets out procedures to govern
the forensic exam. (Dckt. 150 at Ex. F). Defendants agreed to
pay for the costs associated with the exam. Before the
Protocol could be finalized, however, Belcastro withdrew from
it out of a concern that a third-party ESI search would be
overly invasive of his privacy.
then brought their renewed motion to compel asking the Court
to direct plaintiff to (1) identify the information that he
has withheld based on his objections to defendants'
discovery requests and to submit a certificate of completion
stating that plaintiff has fully answered defendants'
requests; (2) respond more fully to defendants' Requests
for Production Nos. 9 and 18; (3) provide a complete
privilege log; and (4) submit to a third-party ESI search of
plaintiffs' electronic devices. In their reply brief,
defendants withdrew the first three elements and only pursue
the fourth argument that plaintiff should submit to a
forensic examination by a third-party ESI vendor.
forensic ESI exam constitutes an extraordinary remedy that is
required “[o]nly if the moving party can actually prove
that the responding party has concealed information
or lacks the expertise necessary to search and
retrieve all relevant data.” Mirbeau of Geneva Lake
LLC v. City of Lake Geneva, No. 08-CV-693, 2009 WL
3347101, at *1 (E.D.Wis. Oct. 15, 2009) (emphasis added). As
this language suggests, the non-moving party may be required
to submit to a forensic exam even if that party has not
intentionally withheld discoverable ESI: in particular, a
third-party investigation may be appropriate when the
non-moving party “fails to initiate a reasonable
process to search for, collect and produce responsive
ESI.” Procaps S.A. v. Patheon, Inc., No.
12-24356, 2014 WL 11498061, at *3 (S.D.Fla. Dec. 30, 2014).
“Mere suspicion or speculation that an opposing party
may be withholding discoverable information is insufficient
to support an intrusive examination of the opposing
party's electronic devices or information system.”
Hespe v. City of Chicago, No. 13 C 7998, 2016 WL
7240754, at *4 (N.D.Ill.Dec. 15, 2016) (internal quotes and
citation omitted). In determining whether a third-party exam
is required, courts must guard against undue intrusiveness
and protect the non-moving party's privacy interests.
See John B. v. Goetz, 531 F.3d 448, 459-60 (6th Cir.
2008). To that end, courts must take care to ensure that the
request for a forensic exam is proportional to the needs of
the case. See Motorola Solutions, Inc. v. Hytera Comm.
Corp., 365 F.Supp.3d 916, 925 (N.D.Ill. 2019) (citing
A forensic exam is warranted because the evidence shows that
plaintiff lacks the expertise to search and retrieve all
relevant data from his devices
argue that a forensic exam is warranted because
plaintiff's continued production of ESI material - as
well as the contradictions in his statements about that
production - give rise to an inference that he has engaged in
the spoliation of evidence. Plaintiff, on the other hand,
argues that a forensic exam is unnecessary because he has
diligently examined all of his devices and has already
produced 1, 300 pages of information to defendants. (Dckt.
145 at ...