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Ellis v. Hobbs Police Department

United States District Court, D. New Mexico

September 23, 2019

BRANDON ELLIS, et al., Plaintiffs,
v.
HOBBS POLICE DEPARTMENT, et al., Defendants.

          ORDER GRANTING MOTION FOR PROTECTIVE ORDER

          GREGORY B. WORMUTH, UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER comes before the Court on Plaintiffs’ Motion for Order to Protect the Privacy of Plaintiff Ellis’ Family Members’ Cell Phones (doc. 151) and the attendant briefing (docs. 156, 159). For the following reasons, Plaintiffs’ Motion is GRANTED, with the exception of the request for relief raised for the first time in Plaintiffs’ reply brief.[1]

         I. Factual Background

         On December 26, 2018, the Court entered a Stipulated Order Resolving Cell Phone Production. Doc. 99. This order codified the parties’ agreement regarding the forensic examination of Plaintiff Brandon Ellis’ cell phone, and read in relevant part as follows:

C. Mr. Link [Defendants’ forensic analyst] shall conduct a forensic examination of Plaintiff Ellis’ cell phone and iCloud account, including:
1. Examination of the cell phone’s recording function and/or application utilized by Ellis to find audio recordings and evidence of deletion/alteration/editing of audio recordings he may have created or deleted on the cell phone;
2. Examination of the cell phone’s memory and data storage apps to find audio recordings and evidence of the deletion/alteration/editing of audio recordings created or deleted by Ellis; and
3. Examination of Ellis’ iCloud account to find audio recordings and evidence of the deletion/alteration/editing of audio recordings created or deleted by Ellis.
D. The IT experts’ forensic evaluation of the cell phone will take approximately three (3) days. Immediately upon the IT expert’s completion of the forensic examination of the cell phone, he shall mail it via Federal Express Mail to Plaintiff Ellis’ home address[.]

Id. at 2. In addition, the Stipulated Order contained the following explicit limitation:

         “The cell phone has been in the possession of Ellis’ daughter since Spring 2018. The IT expert shall not examine any data or data storage on the cell phone created by Brandon Ellis’ daughter.” Id. at 2 n.1.

         Prior to the ordered forensic examination, however, Plaintiff Ellis took the iPhone 6 to a Verizon store on January 5, 2019, in order to transfer his wife’s Apple ID and his daughter’s iCloud information onto a new phone for his wife.[2] According to Mr. Ellis’ deposition testimony, he did not give the Verizon store employees authorization to reset the phone, nor was he warned that a reset would be performed. Doc. 151‐1 at 10. Nevertheless, the end result was that the phone’s data was erased and Defendants’ technician was unable to examine the phone’s memory for evidence relating to audio recordings created or deleted by Mr. Ellis. See doc. 151 at 2. Mr. Ellis agreed to produce his new phone, an iPhone 8, for examination in order to find any evidence of existing, altered, or deleted audio recordings. In addition, Mr. Ellis agreed to produce his wife’s and daughter’s cell phones for examination. See id. However, following an email exchange between opposing counsel about the forensic examinations, Mr. Ellis conditioned production of his wife’s and daughter’s cell phones on his counsel’s filing a motion to protect their privacy. See id. at 5. Although counsel apparently reached a verbal agreement that the technician would not examine the data of Mr. Ellis’ wife and daughter, Defendants were-and remain-unwilling to codify this agreement in writing. See id.; doc. 156 at 2. Notwithstanding this disagreement, on August 13, 2019, Plaintiffs’ counsel indicated Mr. Ellis’ intent to overnight the two phones that day. See doc. 151 at 5; doc. 151‐12. Defendants have confirmed that the phones were received. See doc. 156 at 2.

         Defendants did not specify in their response, and Plaintiffs apparently do not know, whether a full forensic examination of these phones was actually conducted. See doc. 159 at 4 (“Defendants have not affirmatively stated that the examination of the cell phones was completed.”). On August 28, 2019, defense counsel emailed Plaintiffs’ counsel and noted that “the examination has not been able to go forward because of the motion that you filed, and will not be able to go forward until we come to an agreement.” Doc. 159‐2. Defense counsel proposed that Plaintiffs withdraw their motion and, in exchange, Defendants would agree to limit examination to information regarding “the Hobbs Police Department, the end of Mr. Ellis’s employment with the Hobbs Police Department, or any information regarding the recordings that were deleted from Mr. Ellis’s phone or information regarding those recordings exists [sic].” Id. Plaintiffs’ counsel reiterated that Mr. Ellis wanted a Court‐ordered codification of their verbal agreement, and the parties currently remain at an impasse.

         II. ...


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