Case Number: BC541078 Hearing Date: May 05, 2016 Dept: 50

Superior Court of California
County of Los Angeles
Department 50

JANE DOE
Plaintiff,
vs.
F&O NEWPORT BEACH, LLC, et al.
Defendants. Case No.: BC 541078
Hearing Date: May 5, 2016

Hearing Time: 8:30 a.m.

[TENTATIVE] ORDER RE:

PLAINTIFF’S MOTION FOR PROTECTIVE ORDER RE DEMAND FOR FORENSIC INSPECTION OF PLAINTIFF’S CELL PHONE

Factual Background

Plaintiff Jane Doe (“Plaintiff”) filed this action on April 1, 2014. The operative Second Amended Complaint (“SAC”) is brought against several entity defendants that are collectively referred to in the SAC as “Fig & Olive” and the individual defendant Prem Dabgotra. The SAC alleges that Plaintiff was employed as a server at Fig & Olive. Plaintiff alleges that in December 2013, after working a shift, she was raped by Dabgotra, her direct supervisor. The SAC alleges causes of action for (1) rape; (2) sexual battery; (3) sexual harassment; (4) hostile work environment; (5) intentional infliction of emotional distress; (6) negligent infliction of emotional distress; (7) retaliation; (8) failure to prevent harassment and retaliation; and (9) negligent supervision.

This motion concerns a demand for forensic inspection of Plaintiff’s cell phone, served by Defendant F&O Newport Beach, LLC (“Defendant”) on March 22, 2016. (Hess Decl. ¶8, Ex. A.) The demand requests that Plaintiff appear at Defendant’s counsel’s office on May 24, 2016 and produce all cell phones that she has owned from December 30, 2013, to the present so that Defendant’s forensic inspector can attempt to recover the following electronic information:

1) All texts, emails, and calls from December 30, 2013 through January 2, 2014;

2) All photos, video and audio recordings, and images from December 30, 2013 through January 2, 2014;

3) All texts, emails, and calls to and from Chris Gonzalez and/or Lauren Plaxco from December 30, 2013 to the present;

4) All texts, calls, and emails to and from Prem Dabgotra

5) All texts, calls, and emails to and from Jerrus Roxas;

6) All telephone call log information to or from Prem Dabgotra from the time Jane Doe began working at the Newport Beach location until the present;

7) All texts, emails, and calls to and from Kurt Finney from December 30, 2013 to the present;

8) All data regarding contact with the police after December 30, 2013 to the present, including but not limited to Detective Morales or other officers or personnel in Orange County or Newport Beach, California, law enforcement divisions;

9) All texts, telephone, or other data from December 30, 2013 to the present regarding any witnesses identified in this case by Plaintiff, on issues relating to liability, causation and damages

Plaintiff now moves for a protective order preventing Defendant from conducting the forensic inspection of Plaintiff’s cell phone.

Discussion

When an inspection has been demanded, the party to whom the demand is directed may promptly move for a protective order. (CCP §2031.060(a).) The Court is empowered to issue whatever order “justice requires” to protect a party against “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (CCP §2031.060(b).) “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (CCP §2017.020(a).)

Further, with respect to electronically stored information, the Court “shall limit the frequency or extent of discovery” if any of the following conditions exist:

1) It is possible to obtain the information from some other source that is more convenient, less burdensome, or less expensive.

2) The discovery sought is unreasonably cumulative or duplicative.

3) The party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought.

4) The likely burden or expense of the proposed discovery outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues.

(CCP §2031.060(f).)

Texts, Emails, Photos, Video & Audio Recordings

Plaintiff’s counsel represents that Plaintiff has already produced all relevant documents from her phone including all texts and photos from the night of the incident, and all texts and emails with anyone thereafter regarding the incident. (Hess Decl. ¶3.) Plaintiff has also provided verified discovery responses stating which documents she could not produce because they never existed or are not in her possession, custody, or control. (Id.)

Defendant argues that it has the right to forensically corroborate the accuracy of text messages that were produced. However, there is no evidence that calls into question the accuracy of the documents produced by Plaintiff. Nor is there any reason to believe that Plaintiff’s verified discovery responses contain false representations regarding the existence of responsive documents. Moreover, Defendant has not established that it has tried to “corroborate the accuracy” of the production by requesting the same information from the recipients and senders of the emails, text messages, etc. to Plaintiff.

Defendant’s demand to inspect Plaintiff’s cell phone to discover texts, emails, photos, videos, and audio recordings which have already been produced or which do not exist is unreasonably cumulative, duplicative, overly broad and burdensome. Defendant may not recover these documents through the forensic inspection.

Pictures of Prem Dabgotra

Defendant cites to deposition testimony wherein Plaintiff admitted that she deleted photographs of Prem Dabgotra that were on her phone. (Hazany Decl. ¶5, Ex. B at 138:4-13.) These photographs have not been produced and there is no indication that Plaintiff has made any attempt to recover them, but the Court would be inclined to let her have an opportunity to hire someone to do so at her own cost since these photographs are clearly relevant to this action. Alternatively, the Court would be interested in hearing about a less intrusive method for recovering these photographs other than the proposed forensic inspection of Plaintiff’s cell phone by Defendant’s expert (e.g. possibly using a neutral third party forensic expert to do the initial search and that expert would not testify for either party).
The issue of the photograph of Plaintiff’s alleged injury identified by Mr. Kinney appears to be moot based upon the availability of the photos from the examining nurse.

Call/Text Logs

Plaintiff acknowledges that she has not produced her call and text log history. Plaintiff argues that Defendant can obtain this information through less intrusive means—by following through on its subpoena to AT&T.

On December 10, 2014, Defendant served a records subpoena to Plaintiff’s cell phone provider, AT&T. (Hess Decl. ¶4, Ex. B.) After Plaintiff filed a motion to quash the subpoena, the parties entered into a stipulation on October 1, 2015. (Hess Decl. ¶¶5-6, Ex. C.) The stipulation provides, inter alia, that AT&T may produce the call and text log information which Defendant now seeks to obtain through the forensic inspection of Plaintiff’s cell phone. Plaintiff’s counsel states that, after the stipulation was entered into, she did not hear anything further from Defendant or AT&T. (Hess Decl. ¶7.)

In opposition, Defendant contends that it cannot obtain the call and text log information from AT&T because it does not have the account holder’s name. The account holder is Plaintiff’s father. The identity of Plaintiff’s father is not privileged or protected as a matter of privacy. Defendant may obtain the name of Plaintiff’s father to provide it to AT&T so the stipulation entered into may be effectuated.

Conclusion

For the foregoing reasons, Plaintiff’s motion for a protective order is granted in part and denied in part as set forth above.
Plaintiff is ordered to give notice.