MONIQUE WILLIAMS, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants Civil Action No. 17-445 (JDB) United States District Court, District of Columbia Filed September 27, 2018 Counsel Karen E. Evans, Washington, DC, Rabiah Abdullah, The Cochran Firm, Washington, DC, for Plaintiff. Scott Leeson Sroka, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant United States of America. Crystal S. Deese, Jackson & Campbell, P.C., Washington, DC, for Defendant Children's National Medical Center. Bates, John D., United States District Judge ORDER *1 Before the Court are [28], [29], and [30] the parties’ position papers regarding several discovery issues that were raised with the Court during a joint telephone call to chambers. Specifically, the parties dispute: (1) whether plaintiff's counsel may visually inspect and videotape the areas of defendant Children's National Medical Center's (“CNMC”) facilities where H.W., the decedent in this medical malpractice case, was treated; (2) whether plaintiff may depose Dr. Sephora Morrison, whose deposition was previously scheduled but then cancelled; and (3) the parameters governing defendants’ search of the data stored on H.W.’s cell phone. Under Federal Rule of Civil Procedure 26(b)(1), a party is entitled to discover any relevant, nonprivileged information that is “proportional to the needs of the case.” To determine whether a discovery request is proportional, courts consider “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Rule 26(b)(2)(C) further provides that the Court “must limit the frequency or extent of discovery” if “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” I. PLAINTIFF'S REQUEST TO INSPECT CNMC'S FACILITIES First, plaintiff seeks to visually inspect and videotape the areas of CNMC's facilities where plaintiff was treated. According to plaintiff, this information is relevant to whether CNMC provided an “appropriate” environment—that is, a sufficiently private one—“when taking [plaintiff's] social history (especially history of a sexual nature).” Pl.’s Position Paper Regarding Disc. Issues (“Pl.’s Paper”) [ECF No. 28] at 10–11; see CNMC's Position Paper (“CNMC's Paper”) [ECF No. 30] at 1. CNMC responds that this inspection would be unduly burdensome, see CNMC's Paper at 4, and that the information that plaintiff seeks could be (or at least could have been) obtained by deposing H.W.’s doctors or family members who were present during his medical visits. CNMC's arguments are persuasive. The areas plaintiff seeks to inspect include an emergency room, a pediatric intensive care unit, and a room (or rooms) in the inpatient area of CNMC's main hospital. See Pl.’s Request for Production and On-Site Inspection and Videotaping of Electronic Medical Record and Premises (“Pl.’s Inspection RFP”) [ECF No. 30-1] ¶ 1. All of these facilities are active during the business hours, and every bed in both emergency room facilities is being used nine-five percent of the time. See Decl. of James Chamberlain, M.D. (“Chamberlain Decl.”) [ECF No. 30-2] ¶ 4. Plaintiff's proposed inspection would not only crowd these spaces and increase anxiety among young patients and their parents, see id. ¶ 3, but it could also seriously interfere with patient privacy, see id. ¶ 4, and even expose CNMC to civil liability, see CNMC's Paper at 4. *2 Moreover, as CNMC points out, plaintiff could obtain (or at least could have obtained) discovery of this information from other sources. H.W.’s mother was present for several of H.W.’s hospital visits, including at least one visit at each of the facilities that plaintiff seeks to inspect. See CNCM's Paper at 3. Plaintiff has also deposed several of the doctors who treated H.W., and thus could have asked those doctors questions about the physical space in which the treatment occurred. See id. (noting that plaintiff has already deposed two doctors who treated him at the emergency room plaintiff seeks to inspect). Hence, plaintiff's proposed discovery would burden significantly the operations of several active medical facilities in order to obtain information that “can be”—or at least could have been—“obtained from some other source that is more convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C). Plaintiff's first discovery request will therefore be denied. II. PLAINTIFF'S REQUEST TO DEPOSE DR. SEPHORA MORRISON Next, plaintiff seeks to reschedule the deposition of Dr. Sephora Morrison. Dr. Morrison's deposition was originally set for September 11, 2018, but she later cancelled due to a conflict. See Pl.’s Paper at 8; CNMC's Paper at 5 n.4. CNMC then refused to reschedule the deposition, explaining that Dr. Morrison never treated H.W. See Pl.’s Paper at 8; CNMC's Paper at 5–6 (stating that defense counsel has confirmed with Dr. Morrison that she never treated H.W.). But the parties do not dispute that Dr. Morrison's name appears in H.W.’s medical records, and plaintiff seeks to question Dr. Morrison as to why this is so. See Pl.’s Paper at 8–9. Specifically, plaintiff would like to ask Dr. Morrison “how her password was accessed” in H.W.’s electronic health record; “why [her] name appears in connection with key data” contained in that record; “who[ ] else, if not [she], was authorized to take the actions attributed to her in the record”; and whether “the electronic record is authentic.” Id. Plaintiff's request is generally reasonable and will be granted, although the scope of Dr. Morrison's deposition will be limited as follows. Plaintiff may question Dr. Morrison only as to matters related to H.W.’s electronic record specifically; thus, plaintiff may ask Dr. Morrison how and why her credential was used to access H.W.’s electronic medical record, who accessed that record on her behalf and for what purpose, and whether the record was accessed with her knowledge. See Pl.’s Paper at 8–9. Plaintiff may not, however, question Dr. Morrison generally regarding the authenticity of CNMC's medical records or the reliability of its electronic record system. See, e.g., Pl.’s Paper at 9 (“Apparently, Dr. Morrison's testimony will show that the records are not accurate, and cannot be relied upon.”). CNMC has not offered Dr. Morrison as a person designated to testify on its behalf regarding the authenticity of its records, see Fed. R. Civ. P. 30(b)(6), and plaintiff has presented no other reason to conclude that Dr. Morrison has personal knowledge of such matters, see Fed. R. Evid. 602. Subject to these limitations, however, the Court will allow Dr. Morrison's deposition to proceed. III. CNMC'S SEARCH OF H.W.’S CELL PHONE Finally, the parties disagree as to whether defendants may search the information stored on H.W.’s cell phone and, if so, how that search should be conducted.[1] Although the Court will permit defendants to search the phone, that search will be limited in the manner described below. *3 Federal Rule of Civil Procedure 34 provides that “[a] party may serve on any other party a request within the scope of Rule 26(b) ... to produce and permit the requesting party or its representative to inspect, copy, test, or sample ... electronically stored information ... stored in any medium,” so long as that information is “in the responding party's possession, custody, or control.” Courts have recognized that this rule applies to information stored electronically on a cell phone. See, e.g., Freres v. Xyngular Corp., No. 2:13-CV-400-DAK-PMW, 2014 WL 1320273, at *2, 5–6 (D. Utah Mar. 31, 2014); Lee v. Asplundh Tree Expert Co., No. C17-719-MJP, 2017 WL 6731978, at *1–2 (W.D. Wash. Dec. 29, 2017). In considering a request to discover the contents of a cell phone, then, courts apply the same balancing test that applies to discovery requests generally under Rule 26: they weigh the requesting party's need for the discovery against the burdens on the responding party. See Genworth Fin. Wealth Mgt., Inc. v. McMullan, 267 F.R.D. 443, 446 (D. Conn. 2010) (agreeing with the responding party that “Rule 34 and the Comments thereto, together with Rule 26(b)(2)(B), strongly suggest that a court's ruling on ... requests [for discovery of electronically stored information] is discretionary and should take into account substantive considerations of the burden and expense of the request”). The commentary to Rule 34 specifically suggests that “claims of privacy or secrecy” be addressed using a protective order under Rule 26(c). See Fed. R. Civ. P. 34, advisory committee's note to 1970 amendment. First, plaintiff argues that defendants should not be permitted to search H.W.’s phone at all. Branding defendants’ request a “fishing expedition,” plaintiff claims that defendants have shown neither that the phone is likely to contain relevant information, nor that any such information could not be discovered by other, less invasive means—such as by interviewing H.W.’s friends and family. See Pl.’s Paper at 3–6. According to the defendants, however, the phone is likely to contain information pertaining to H.W.’s “sexual history” and “risk factors” for certain STDs that plaintiff alleges CNMC's physicians negligently failed to diagnose H.W. as carrying. Gov't’s Paper at 4.[2] Defendants contend that if H.W. did not disclose these risk factors to his treating physicians, then his physicians were not negligent; alternatively, even if his physicians were negligent, H.W. was at least “contributorily negligent for misinforming providers, barring any recovery.” Id. Defendants further claim that “H.W.’s father figure, grandmother, and two of his close high school friends have been deposed,” and “[a]ll denied any knowledge regarding H.W.’s sexual orientation, practices, partners, ... and, indeed, almost all of his personal life.” Id. at 5. Thus, according to defendants, “it is likely that the only information regarding [these matters is] contained within his cell phone.” Id. Defendants will be permitted to conduct a limited search of H.W.’s phone. Their search will be limited to the categories of information identified in their position paper: a) H.W.’s headaches, stomach pain and/or discomfort, abdominal pain and/or discomfort; b) H.W.’s medications; c) H.W.’s headache log; d) Any aspect of H.W.’s health; e) sexual activity and/or safe sex practices; f) H.W.’s romantic interests and/or person with whom H.W. had any form of physical relationship; g) HIV, Chlamydia, syphilis, and/or gonorrhea and/or testing for same; h) H.W.’s school attendance; i) H.W.’s absences from school and/or the reasons for such absences; j) H.W.’s band practices and/or performances and/or absences from same; and k) H.W.’s football games and/or practices and/or absences from same. Gov't’s Paper at 5–6. As defendants explain, discovery is important to their case because it may demonstrate that H.W. withheld information from (or made misrepresentations to) CNMC's physicians, which could in turn establish either that the physicians did not breach the applicable standard of care or, if they did, that H.W. was contributorily negligent. See Fed. R. Civ. P. 26(b)(1). Moreover, defendants have thus far been unable to obtain this discovery by less invasive means, such as by interviewing H.W.’s friends and family. See Fed. R. Civ. P. 26(b)(2)(C). Finally, the Court has entered a protective order in this case, see Apr. 17, 2018 Order [ECF No. 24], and any information found on H.W.’s cell phone would be subject to that order. Accordingly, the Court finds that defendants’ need for this discovery outweighs the burdens on plaintiff—including the burdens on H.W.’s privacy interests—and the search will be allowed to proceed. *4 Plaintiff also argues that if the search goes forward, it should be subject to several conditions. See Pl.’s Paper at 7. Specifically, plaintiff wishes: (1) to be present when the phone is unlocked; (2) that defendants’ data recovery specialist preserve only data that is relevant and that was created within a certain time period; (3) that defendants identify the information they seek with particularity; and (4) that the parties be permitted to file motions to compel or to protect any data that is recovered. See id. In the joint conference call to chambers, plaintiff's counsel also requested (5) that plaintiff be permitted to review the results of the search first, so as to preserve plaintiff's right to assert a privilege as to any portion of the cell phone data; and (6) that the search of the phone be limited to certain keywords, which the parties would agree on in advance. For the most part, plaintiff's requests are reasonable and will be granted. Plaintiff or plaintiff's counsel may be present for whatever portions of the data recovery process plaintiff or her counsel wishes to observe, so long as her presence does not unduly burden the data recovery process. Defendants will instruct their data recovery specialist to use specific keywords, agreed upon by the parties in advance, to search textual data on the phone (such as text messages and emails) but may extract without limitation other materials (such as audio or video) that are not reasonably subject to being searched using keywords. Defendants’ data recovery specialist will then turn over the results of its search first to plaintiff's counsel, who will review the information and, within a reasonable time, will raise any claim of privilege in the manner prescribed by applicable Federal Rules of Civil Procedure. The data recovery specialist may then turn over any relevant, nonprivileged materials to defendants’ counsel; however, neither defendants nor their data recovery specialist will retain or preserve any data that is not relevant to the categories of information noted above.[3] Finally, both parties may file any motions to protect from disclosure or to compel the disclosure of data found on H.W.’s cell phone without first seeking permission from the Court. Accordingly, it is hereby ORDERED that plaintiff's request to visually inspect and videotape CNMC's physical facilities is DENIED; it is further ORDERED that plaintiff's request to depose Dr. Sephora Morrison is GRANTED and that Dr. Morrison's deposition shall be set for a time and place agreeable to all parties; it is further ORDERED that plaintiff may seek to elicit testimony from Dr. Morrison regarding H.W.’s electronic health record but may not seek to elicit any testimony concerning the general reliability of CNMC's medical records or its electronic records system; and it is further ORDERED that defendants’ request to search H.W.’s cell phone is GRANTED, subject to the limitations and procedures outlined above in this Order. SO ORDERED. Footnotes [1] Initially, plaintiff declined to produce the phone to defendants, explaining that the phone had permanently locked itself after an incorrect password had been entered too many times. See Pl.’s Paper at 6; Def. U.S. of Am.’s Statement of Position on the Inspection of the Decedent, H.W.’s, Cell Phone [ECF No. 29] (“Gov't’s Paper”) at 6. Defendants later found a data recovery company that believes it can access the phone by taking advantage of a “security vulnerability” in the phone's software. Gov't’s Paper at 6. [2] CNMC's position paper addresses the physical inspection and deposition issues on defendants’ behalf, while the United States’ position paper addresses the issues pertaining to the search of H.W.’s cell phone. [3] Because the Court finds that these categories of information are sufficiently particular, it does not further address plaintiff's request that defendants be instructed to set forth with particularity the information that they seek to recover from the cell phone. Nor does the Court see any reason to limit the timeframe of defendants’ search since, as defendants point out, H.W.’s model of phone was first issued in October 2011, Gov't’s Paper at 8, ten months before H.W. first started seeing the CNMC providers at issue in this case in August 2012, see id. at 2. To the extent that the phone is found to contain data generated prior to October 2011, the Court nonetheless limits the temporal reach of defendants’ search to no earlier than October 2011, since the government limited its request to electronically stored information from January 1, 2012. See id. at 8.