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Belcastro v. United Airlines, Inc.

United States District Court, N.D. Illinois, Eastern Division

December 23, 2019


          Andrea R. Wood, District Judge.


          Hon. Jeffrey Cummings, United States Magistrate Judge.

         Before 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.

         I. BACKGROUND

         On 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” (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 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).

         Much of 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).

         On 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.

         After 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.

         Defendants 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.[1] 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.


         A 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 cases).


         A. A forensic exam is warranted because the evidence shows that plaintiff lacks the expertise to search and retrieve all relevant data from his devices

         Defendants 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 ...

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