Page 19 - November 2017 Magazine

imaging of non-party personal phones. The City’s attorney argued that the order to preserve evidence only required the preservation of evidence; it was not a discovery order requiring the actual production of any specific evidence. Moreover, the City raised privacy concerns over the col- lection of individuals’ cell phones: “When a cell phone is searched, it calls into play a unique privacy interest be- cause of its vast storage capabilities and the sheer breadth of the type of data it stores.” The City went on to opine that even the Supreme Court recognizes such a search must be treated carefully because of the massive privacy concerns which exist. Adding further, the City contended that the plaintiff had not even demonstrated the relevance or need for this highly private information. This all fell on deaf ears.
At the Oct. 11 motion hearing, the Judge explained that the issue in front of him was not one of production, but merely of preservation. Among other things, he ordered all the personal cell phones identified by the plaintiff to be imaged and maintained by a third-party vendor, within two weeks. At the City’s request, the court allowed the indi- vidual Officers impacted by this decision to be heard.
Several of the Detectives affected by the preservation or- der contacted the Lodge, seeking assistance. After meeting with two of them, the Lodge quickly filed a Motion to Inter- vene (on behalf of all impacted Officers and Detectives be- low the rank of Sergeants) and a Motion to Reconsider the prior ruling. On Oct. 18, when the court heard the motions, the Lodge obtained some relief for its members.
The Lodge explained that the intervenors’ personal cell phones contain highly personal and sensitive files, in- cluding: banking and medical data, social security num- bers, sensitive information involving children and family
members, personal photographs and video, as well as login information to personal accounts and other applications. The Lodge could not imagine what possible relevance any family photos, private health information or personal banking records might have on the underlying litigation. In this regard, the court agreed.
First, the Judge allowed the Lodge to intervene and par- ticipate in both the preservation process and in any dis- covery disputes going forward. Next, the judge made it clear that the third party vendor would be responsible for maintaining the data and “not allow anyone access to the files...until further order of the court.” In other words, nei- ther the City nor the plaintiff’s attorneys would have access to the data.
The judge then went on to limit the data that could be collected, specifying that the only files to be imaged in- clude: text messages from the phones native message ap- plication; emails; voicemails; phone call logs; video files; and photo files. The parties further limited the time period from July 28 (the date of the incident) forward. Finally, the court agreed to allow more time to accomplish the actual imaging. During the next several days, the Lodge contacted all 16 of its members and offered assistance in understand- ing and complying with the modified order.
As I wrote in a prior article, Officers should not be using their personal cell phones while at work – even if it is strict- ly for personal use. Avoid any potential problem. Nothing in our Collective Bargaining Agreement requires a Police Officer to have a personal cell phone while working. Any need to communicate for work-related business should be performed exclusively using a Department-issued de- vice.d
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