United States: Fishing In A Digital Ocean: 1st DCA Rules Defense May Discover All Data On Decedent's Cellphone

Last Updated: October 30 2014
Article by Michael K. Gutman

Florida's First District Court of Appeal recently upheld a trial court order allowing Defendants' expert to conduct an inspection of "all data" on a decedent's cellphone, albeit under strict and controlled parameters. See Antico v. Sindt Trucking, Inc., Case No. 1D14-277, 2014 WL 5099433 (Fla. 1st DCA October 13, 2014).1 The three judge panel recognized the decedent's legitimate privacy concerns, but remarked "privacy rights do not completely foreclose the prospect of discovery of data stored on electronic devices." The decision may signal an opening of the proverbial floodgates into the discovery of electronically stored information, and may assist litigants in uncovering critical and damaging evidence as parties become increasingly reliant on their laptops, tablets, and smartphones.   

The underlying matter involved a wrongful death action brought by the estate of Tabitha Antico after she was killed in a collision with Defendants' truck. Defendants argued Ms. Antico was distracted by her cellphone and therefore, was the sole cause of the accident, or alternatively, was comparatively negligent. Through discovery, Defendants obtained Ms. Antico's text messages and calling records directly from her wireless provider. Because the information Defendants received failed to include other critical metadata such as "use and location information, internet website access history, email messages, and social and photo media posted and reviewed on the day of the accident," Defendants requested the trial court allow their expert to inspect the contents of Ms. Antico's cellphone directly. Balancing Ms. Antico's privacy interests against Defendants' right to discover relevant information, the trial court fashioned a comprehensive and narrowly-tailored order allowing the requested inspection.

On appeal, the First District rejected the estate's contention Defendants' request was an improper fishing expedition, as Defendants brought forth specific evidence demonstrating the relevancy of the electronically stored information. Defendants cited cellphone records indicating Ms. Antico was texting just minutes before the accident, and introduced testimony of two witnesses and the responding troopers showing Ms. Antico may have been using her phone at the time of the accident. Further, the trial court imposed strict parameters for the inspection. The estate was given an opportunity to videotape the inspection. The trial court required Defendants' expert to install write-protect software to preclude alteration of the phone's hard drive, and the expert could only view data for a nine-hour period preceding the accident. After the inspection, the court required the expert prepare a summary of the data reviewed, however, before any findings were disclosed to Defendants, the estate was given an opportunity to interpose any objections. 

            The First District believed the strict parameters appropriately safeguarded Ms. Antico's privacy. Not to mention, for reasons unknown, the estate failed to propose an alternative, less intrusive plan for the inspection and did not offer to have its own expert review the data. The panel explained, "if an effective and superior privacy-respecting plan for segregating inspection-permissible from -impermissible data exists, it hasn't been presented to the court."       

The practical importance of the Antico decision lies in the breadth of the order, which allowed the expert to inspect "all data" on Ms. Antico's cellphone. The trial court permitted examination of call records, text messages, web searches, emails sent and received, uploads, downloads, data changes, and GPS data. Even more, although Defendants argued Ms. Antico was distracted by her cellphone at the time of the accident, the order allowed Defendants' expert to inspect data for a nine-hour period. The panel explained why examination of "all data" was appropriate and highly relevant to the issues in the case. Yet, it failed to address why an examination of a nine-hour period was proper or necessary, when it seems the critical issue was whether Ms. Antico was distracted at the time she collided with Defendants' truck.     

That being said, the panel found the order was not overbroad and mentioned the only way to determine whether Ms. Antico was utilizing her phone's software at the time of the incident, or dialing a number, sending a text, searching for contact information, or reviewing prior messages, was by "broadly inspecting data associated with all of the cellphone's applications." Going forward, if a party can provide specific evidence demonstrating the relevancy or necessity of a request for electronically stored information, it seems the Antico case may serve as a basis for a broad request to discover "all data" on a litigant's device.


1 Please note, this opinion was issued on October 13, 2014.  Florida Rule of Appellate Procedure 9.330 provides a Motion for Rehearing "may be filed within 15 days of an order or within such other time set by the court." Therefore, the deadline for Petitioner to seek rehearing is on or before October 28, 2014, at which point this decision becomes final.

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Michael K. Gutman
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