United States District Court, D. New Mexico
ORDER GRANTING MOTION FOR PROTECTIVE ORDER
GREGORY B. WORMUTH, UNITED STATES MAGISTRATE JUDGE.
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.
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:
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.
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. 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.
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.