Cross-Motions to Compel in Employment Lawsuit

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

In Cooper v. Baltimore Gas and Electric Co., 2025 WL 404246 (D. Md. Feb. 5, 2025)(Coulson, J.), Ms. Cooper sued BG&E and another employer for sexual harassment and discrimination.^[1] 

The Court resolved cross-motions to compel. Both discovery motions were granted in part and denied in part. 

The decision reflects the fact-specific nature of ESI issues and the detail with which courts are addressing them. The defense sought a broad forensic examination of plaintiff’s ESI, and plaintiff’s question was “who pays”? The answer was that the plaintiff must pay. The Cooper Court also ordered discovery of a cell phone provider’s text message log as a useful cross-check on the completeness of discovery. And, even though plaintiff denied communications on a defense work cell phone, the Court ordered a forensic examination of that phone because memories are imprecise. The Court also, at least for the moment, denied both requests for other remedies or sanctions.

The Court wrote:

In Defendants’ motion, they seek a forensic examination of Plaintiff’s cell phone (and SIM card) and a search of her physical and cloud storage to look for communications between Plaintiff and her alleged harasser (Mr. Roberts), as well as other current or former employees about the events at issue during the relevant time period to include text messages, Facebook Instant Messenger communications, and email. As the Court noted at the hearing, text messages and other communications play a prominent role in Plaintiff’s complaint. Plaintiff does not take issue with a forensic examination of her cell phone and SIM card, nor her Apple iCloud account to look for responsive information. Plaintiff, however, wants Defendants to share in that cost. [Emphasis added].

Cooper v. Baltimore Gas and Electric Co., 2025 WL 404246 (D. Md. Feb. 5, 2025)(Coulson, J.).

Finding no real dispute as to relevance, the Court ordered the forensic examination of the cell phone and SIM card. It added:

As for cost, “the presumption is that the responding party [i.e., plaintiff] … must bear the expense of complying with discovery requests.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978). The Court sees no reason to depart from that practice.

Id.

The Cooper Court then turned to the cloud issue:

Likewise, the parties agree that a forensic examination of Plaintiff’s iCloud account is called for, as such communications may have been backed up to that account. Until now, Plaintiff has been unable to access her iCloud account because she cannot remember her credentials. Recently, she was informed by Apple that she can reset her credentials at the Apple store in Towson, Maryland. Plaintiff is ordered to do so by February 14, 2025.

Id.

It also addressed the cell phone provider:

Finally, Plaintiff shall provide her authorization to allow T-Mobile (her cell carrier) to produce information in response to Defendants’ subpoena to T-Mobile by February 14, 2025. Although T-Mobile does not maintain text messages, it reportedly does maintain a log of the date, time and telephone number of incoming and outgoing text messages which, in turn, would be a good cross check on whether all responsive messages between the relevant parties during the relevant time period have been recovered and produced. [Emphasis added].

Id.

The parties agreed on an expert – – James Vaughn at iDiscovery Solutions – – and plaintiff was directed to retain him. 

The Cooper Court added: “The parties should agree on a search protocol to include screening any privileged information, the relevant date range and scope to recover the relevant communications between Plaintiff and Mr. Roberts, or any other current or former employee of either Defendant regarding the events at issue and forward the same to Mr. Vaughn.”

Finally, as to the plaintiff’s motion, the Court denied the request for remedies or sanctions “because an analysis of that issue necessarily requires some insight into the extent to which any missing data can be recovered. See Fed. R. Civ. P. 37(e).”^[2]

The Court then turned to plaintiff’s cross-motion:

As for Plaintiff’s Motion to Compel, Plaintiff seeks a similar forensic examination of Mr. Roberts’ work phone, currently in the possession of Defense counsel. Defendants argue that Plaintiff testified at deposition that she did not communicate with Mr. Roberts on his work phone. That said, memories can be imprecise, and the Court will order the forensic examination of the telephone. The Defendants agreed to the Court’s suggestion that they also use Mr. Vaughn for this examination, since he will be familiar with the search protocol already. The phone should be delivered to Mr. Vaughn by February 14, 2025. Defendants will pay the associated cost. [Emphasis added].

Id.

The plaintiff’s spoliation motion was denied for the same reasons that the defense motion was denied.^[3]

Interestingly, Docket No. 60 (Jan. 10, 2025) reads: “ORDER directing Tavon Roberts to show cause why he should not be held in contempt of court for failure to abide by the subpoena within 45 days.”

In a prior decision, Judge Coulson wrote that: “Accurate and complete discovery responses are not only a responsibility of counsel and their client, but also an opportunity for counsel and their client. It is one of the rare times during the uncertainty of litigation where counsel can tell their client’s story in precisely the most persuasive way possible.” Accurate and Complete Discovery Responses Can Be Strategically Advantageous (May 13, 2024).

Notes

[1] The prior decision outlining the claims is 2024 WL 3849526 (D. Md. Aug. 16, 2024)(Rubin, J.).

[2] Judge Coulson’s analysis of Rule 37(e) was discussed in Recent “Textbook” Analysis of Fed.R.Civ.P. 37(e) (Apr. 17, 2023).

[3] Id.

Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.