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Authorize any representative of all banks and/ 2018 WL 1383188 (S.D. Fla.) (denying request PRIVATE MEDIATOR
PRIVATE MEDIATOR
or any type of lending institution which I have for forensic examination of cell phone because THOMAS REPICKY, ESQ.
THOMAS REPICKY, ESq.
done any business with to consult with and/or it was not “tailored to obtain information that
Tort, Employment, Commercial
deliver to any representative of [the insurer] is relevant to any claim or defense in this case”); Tort, Employment, Commercial
and Malpractice Claims
any and all records referred to or requested by John B. v. Goetz, 531 F.3d 448, 459-60 (6th Cir. and Malpractice Claims

any representative of [the insurer]. 2008) (denying request for forensic imaging Effective & Experienced
Effective & Experienced
The North Carolina Supreme Court because it was “extremely broad in nature and
Over 1,500 Mediationss
found that an insurer does not have an the connection between the [devices] and the Over 1,400 Mediation

Mediated Claims
“unlimited right to roam at will through all claims” was “unduly vague or unsubstantiated Mediated Claims
$10,000 to $12 million
of the insured’s…records without restriction in nature”). $10,000 to $12 million

of reasonableness and specificity. Such an In light of these principles, policyholders (440) 247-3898
(440) 247-3898
obligation would subject an insured to endless should respond to carriers demanding a TomRepicky@sbcglobal.net

TomRepicky@sbcglobal.net
document production…as the insurer fished cell phone inspection or production of their www.ClevelandMediator.com
www.ClevelandMediator.com
for evidence on which to build” its defense.” social media activity by expressing their
Id. at 499. legitimate concerns that these requests will
The Washington Supreme Court, in Tran, involve the disclosure of private and irrelevant Facebook archives can be obtained by the
supra, agreed that “an insurance company information. The insured should then ask its user by following a few simple steps and the
should not have license to burden an insured insurer the following: information is presented in a readable and fairly
with demands for items that are immaterial.” 1. What type of information is being sought organized format. Any concerns the carrier
961 P.2d 358, 367. from the cell phone or social media account? may have as to whether all the information
Although the Rules of Civil Procedure 2. Is there a less intrusive way to provide the specifically requested is being provided can
do not apply to an insurer’s information information sought? conceivably be addressed by borrowing some
requests from policyholders during claims When addressed in this manner, most of the concepts from the protocol described
investigations since no lawsuit exists, the carriers respond by identifying the specific above at the carrier’s expense.
manner in which courts have addressed type of information sought relating to the These and other forms of electronic
discovery disputes over access to social investigation. The probable reason is the information are becoming more and more
media information and electronic data are reality that a court would likely not find an a part of insurance claim investigations. As
also instructive. Many courts agree that “a insured breached his or her duty to cooperate suggested by the above, policyholders should
party is no more entitled to…unfettered where the insurer failed to specify the relevant be proactive in addressing blanket demands
access to an opponent’s social networking information being sought and instead insisted for examination of their mobile devices and
communications than it is to rummage on carte blanche access to all information social media accounts. Insurers should specify
through the desk drawers and closets in his contained in the insured’s mobile device and the type of information sought that is relevant
opponent’s home.” Ogden v. All-State Career social media account. to their investigation and a protocol should
School, 299 F.R.D. 446, 450 (W.D. Pa. 2014); If there is no less intrusive way to provide be agreed upon as appropriate. If both sides
Appler v. Mead Johnson & Co., LLC, 2015 WL the information sought, a well drafted protocol are reasonable, then the insurer’s concerns
5615038, *4 (S.D. Ind.); Tompkins v. Detroit should be considered. Forensic examinations about obtaining information material to
Metro. Airport, 278 F.R.D. 387, 388 (E.D. of mobile devices require an extraction of all its investigation and the insured’s concerns
Mich. 2012). Instead, the requesting party of the items from a specified category(s) from about handing over private, potentially
must identify some specific evidence tending the device before sorting through the data — embarrassing, and irrelevant information can
to show that relevant information exists. the extraction cannot be limited to a certain both be alleviated.
McCann v. Harleysville Ins. Co. of N.Y., 78 time period or to certain subjects (e.g., if text
A.D. 3d 1524, 1525 (N.Y. App. Div. 2010). messages are sought, all text messages will be
Similarly, one of the key factors courts collected not just those involving conversations Justin Rudin is an attorney at
consider before ordering forensic examination between specific people or phone numbers). Rutter & Russin, LLC. He
of electronic devices is the specificity of the For this reason, the insured should propose advocates for insurance
request and relevance to the action. See Greres a protocol addressing (1) the independent policyholders in disputes with
v. Xyngular Corp., 2014 WL 1320273, *4 (D. examiner performing the inspection; (2) the their insurance companies. Justin’s
Utah) (granting motion to compel examination gathering of the information by the examiner main focus is first-party property insurance
of plaintiff’s cell phone where defendant sought that is responsive to the insurer’s request; (3) a claims and life insurance claims, including
“narrow category of information”); Bakhit v. procedure allowing the insured to first review those governed by ERISA. He currently serves
Safety Marketing, Inc., 2014 WL 2916490, *2 the information obtained for privilege and as a vice-chair of the ABA Tort Trial &
(D. Conn.) (denying request for inspection relevance to the claim and preparation of a Insurance Practice Section’s Property Insurance
because it was overbroad, the requesting privilege log describing any information the Law Committee and has been named one of
party did not show they could not obtain insured objects to disclosure and the basis; and Super Lawyers Rising Stars in 2017 and again
the information elsewhere, and the request (4) a mechanism for resolving any disputes in 2018. He has been a CMBA member since
implicated privacy concerns in the cell phone over information identified on the privilege 2016. He can be reached at (216) 642-1425 or
data); Ramos v. Hopele of Ft. Lauderdale, LLC, log via a court or other third party. jrudin@OhioInsuranceLawyer.com.
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