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

Plaintiff, Michelle Madrigal, filed a putative class action against Live Nation Entertainment, Inc. (“Ticketmaster”), alleging deceptive practices, such as offering deceptively low prices and then adding alleged hidden and exorbitant junk fees at the end of the transaction. Defendants deny the allegations. Madrigal v. Live Nation Entertainment, Inc., 2026 WL 1196245 (C.D. Cal. Apr. 24, 2026).

Ticketmaster asserted that Ms. Madrigal’s deposition testimony “tells a very different story.” It asserted that the deposition testimony directly contradicted her allegations that “she was irrevocably committed to purchasing tickets by the time she learned of the fees.”  In deposition, Ms. Madrigal “testified it was her practice to take photos of Ticketmaster’s initial prices and final prices using her phone, and to share those photos in group text messages with her family members to discuss whether to purchase tickets. She confirmed that, on at least five occasions, she and her family members decided not to purchase tickets after seeing the final prices inclusive of fees[.]” [emphasis added].

Ticketmaster moved to compel Ms. Madrigal to provide a forensic image of her cell phone. It claimed that she had produced only a screenshot of a single text message.

Defendants urge that the search process they propose will include robust privacy protections because the forensic imaging and search will be done by a third-party forensic expert – not by Defendants or their counsel; the search will be limited to search terms provided to the Court in a proposed order, ensuring that the forensic expert will review only data responsive to the targeted search terms; any documents “recovered by the forensic expert will be provided to Madrigal’s counsel for privilege and responsive review before any production is made to Defendants; the existing protective order will govern all documents produced from the forensic imaging process; and Defendants will pay “all costs associated with the forensic imaging and expert search.”

Ms. Madrigal responded that forensic imaging was unnecessary because she testified that “she stopped deleting text messages and began preserving all evidence related to the case.”  She asserted that the request was an invasive, disproportionate, “fishing expedition” and an effort to intimidate her by a “baseless” spoliation accusation.  Any deletion of texts or other data, she claimed, was prior to the triggering of her duty to preserve.  Plaintiff claimed that she had met her discovery obligation and produced 1,000 pages. 

Madrigal insists Defendants have misconstrued her deposition testimony to insist that there are “missing screenshots” when, in fact, Madrigal’s testimony only suggested “she may have taken screenshots, may have deleted them before the lawsuit,” but “if she had taken screenshots she would have located the images in her camera roll, and in any event she has turned everything in her camera roll over to her counsel.”

While opposing any forensic examination, Ms. Madrigal also proposed, in the alternative, a more limited forensic examination. She suggested seven conditions. Id. at *3.

Ticketmaster replied:

Defendants insist that Madrigal cannot now assert that no relevant information exists on her phone when she testified at her deposition “about highly relevant evidence on her phone that undermined her claims of deception.” … Defendants emphasize that Ms. Madrigal has not denied her testimony that she sent screenshots and text messages to family members when considering ticket purchases on “at least five occasions”; and does not deny that she has to-date produced in discovery only “a single-page PDF that lacked basic metadata.”

Ticketmaster rejected the argument that it was seeking spoliation evidence.  It asserted that it only sought “evidence Plaintiff herself testified about but thus far has refused to produce.”

The Madrigal court set out the legal standard governing the cell phone issue:

District courts have broad discretion in controlling discovery…. Rule 26 of the Federal Rules of Civil Procedure permits a party to seek discovery regarding “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26. Relevant information need not be admissible…. Proportionality of a particular discovery request is assessed based on a consideration of the importance of the issues at stake; the amount in controversy; the parties’ relative access to the relevant information; the parties’ resources; the importance of the discovery in resolving the issues; and whether the burden or expense of the discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1).

The Madrigal court wrote that it was undisputed “that resolution of this discovery dispute turns on a close analysis of the proportionality factors outlined in Federal Rule of Civil Procedure 26(b)(1).”  It was uncontested that the other two factors—”the importance of the issues at stake in the action and the amount in controversy – support Defendants.”

Therefore, the Court focuses on whether the discovery Defendants seek is disproportional to the needs of the case and whether permitting the forensic exam of Ms. Madrigal’s personal cell phone would impose an unacceptable burden on Ms. Madrigal.

First, Ms. Madrigal argued that it was Ticketmaster’s records, not hers, that would demonstrate whether the pricing policies were unlawful.  The court held that her argument “misses the mark.” It wrote that she had testified to sharing screenshots and text messages with family members at least five times.  That information is “highly relevant to whether Madrigal herself as putative Class representative was deceived in any way by the information she saw and used in making her purchasing decisions. The potential presence and/or absence of any such evidence would be highly relevant here in either establishing or defeating potential class allegations.”

Second, the court disagreed with Ms. Madrigal’s assertion that a forensic exam would be invasive and burdensome.  It looked to the “robust privacy protections” proposed by Ticketmaster, including the opportunity for her to conduct a privilege and responsiveness review before production, and Ticketmaster’s offer to pay all of the costs.  “Thus, the Court finds that the proportionality factors largely weigh in favor of allowing the forensic examination of Madrigal’s cell phone.”

However, the Madrigal court imposed one additional limitation:

Nevertheless, given the singular importance of personal cell phones in our daily lives, the Court is concerned about the indeterminate time frame Defendants have proposed. Therefore, the Court will require that the forensic exam shall be conducted so as to deprive Ms. Madrigal of her personal cell phone for no more than six hours in total. Further, the Court concludes that Plaintiff’s alternative forensic exam proposal includes important safeguards that should all be incorporated into the process as well.

The court ordered Ticketmaster to propose two or three examiners and permitted Ms. Madrigal to choose one of them.  It set various milestones and ordered “the forensic examination will include a search of both active and deleted material for the period July 2022 through February 2025 – inclusive of the day before each of Ms. Madrigal’s ticket purchases, the day of each of her ticket purchases, and the day after each of her ticket purchases….” [emphasis in original].  The order directed that the forensic examiner was subject to deposition.  It provided that the image or data retrieved was subject to protective order, and provided 96 hours for Plaintiff to conduct a privilege review before production.

A similar protocol was imposed on a search of nonparty cell phones in Maryland Appellate Decision Permitting Limited Forensic Search of Non-Parties’ Cell Phones (Mar. 24, 2022).

Cell phone preservation in place may be acceptable, but can be risky.  Fowler Cell Phone Decision Affirmed (May 23, 2023); Plaintiff Sold Her Cell Phone After Litigation Commenced (Mar. 21, 2026).

For a comparison with the standard for a cell phone search warrant in criminal cases, see Discovery From Cell Phones – Differing Civil and Criminal Protocols in Maryland (Nov. 14, 2022).

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