JENNIFER FRANCE Plaintiff, v. CHIPPEWA COUNTY, et al. Defendants Case No. 2:20-cv-248 United States District Court, W.D. Michigan, Northern Division Filed November 22, 2021 Counsel Erin Lynn Dornbos, Sarah Riley Howard, Pinsky Smith Fayette & Kennedy LLP, Grand Rapids, MI, for Plaintiff. M. Sean Fosmire, Kitch Drutchas Wagner Valitutti & Sherbrook PC, Marquette, MI, Thomas Reid Shimmel, Kitch Drutchas Wagner Valitutti & Sherbrook PC, Detroit, MI, for Defendant. Vermaat, Maarten, United States Magistrate Judge ORDER Hon. Gordon J. Quist U.S. District Judge *1 This Order addresses Plaintiff Jennifer France's motion for an order compelling Defendants to forensically image the cell phones of Defendant Commissioner Robert Savoie and former Chippewa County Administrator Jim German, and to produce the responsive documents from those images. On September 16, 2021, France moved this Court to compel Defendants “to respond completely to discovery requests” served approximately two months before. (ECF No. 85, PageID.784.) She also moved for attorney's fees and costs associated with the motion. (ECF No. 86, PageID.787). On October 19, 2021, the undersigned held an early settlement conference for this case, after which the parties discussed the remaining discovery disputes. (ECF No. 95.) At that time, France narrowed her motion to requests for an order: (1) setting a deadline for Defendants to produce the remaining discovery, (2) setting a deadline for Defendants to produce a complete privilege log, and (3) requiring the forensic imaging of cellular devices belonging to Defendant Savoie and former Administrator German. France also conveyed her position that, because Defendants did not respond to her discovery requests with the requisite privilege logs in a timely fashion, Defendants waived all claims to privilege. Defendants argue that they have not waived privilege, and that if the court allows forensic imaging, costs should be shifted to France. Defendants agreed to produce the remaining discovery and privilege logs by November 19, 2021, which addressed Plaintiff's first two issues. After the conference, the Court ordered both parties to file briefs regarding the forensic imaging issue by November 5, 2021 (ECF No. 98) and Defendants to file a brief regarding the privilege issue by December 1, 2021 (ECF No. 93). On November 5, 2021, the parties filed briefs regarding the use of forensic imaging. (ECF Nos. 107, 108.) For the reasons set forth below, the undersigned grants France's motion for an order compelling the forensic imaging of Savoie and German's cellular devices. The Court, however, declines to shift the costs of imaging to France. The undersigned defers ruling on France's motion for costs until the parties have fully addressed the waiver issue. Parties to civil litigation have a duty to preserve electronically stored information (ESI) upon notice that it may be relevant in future litigation. John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008), abrogated on other grounds by Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016). Based on this duty, and because forensic imaging increases the risk of improper disclosure of private or confidential information, district courts rarely compel the use of forensic imaging unless a party can demonstrate either that evidence has been destroyed or a “real danger” that it will be. Id. at 450. This is particularly true where the devices to be imaged are personal cell phones. Hardy v. UPS Ground Freight, Inc., No. 3:17-cv-30162, 2019 WL 3290346, at *3. With this in mind, the Court must be satisfied that forensic imaging is likely to reveal relevant information, and that it is proportional to the needs of the case before it will compel its use. Id. at *3. *2 Here, France moves to compel the forensic imaging of personal cell phones belonging to Commissioner Savoie and former Administrator German. Specifically, she asks that the defense counsel retain an expert to image the phone and then search the images for communications that are responsive to her earlier requests for production. (ECF No. 108, PageID.938-939.) Once defense counsel has identified the responsive communications, she asks that those be produced in accordance with her requests. (Id.) Significantly, France does not move for forensic imaging based on “mere skepticism that an opposing party has not produced all relevant information.” Goetz, 531 F.3d at 460. She bases her requests on: (1) Defendants’ admission that Savoie and German engaged in routine deleting of their text messages, (2) Defendants’ assertion that Savoie and German's phones do not contain responsive communications, and (3) text messages she has received through the discovery process that demonstrate that at one point in time, Savoie and German's phones did contain responsive communications. (ECF No. 108, PageID.941-942.) Defendants concede that they disclosed German's practice of deleting his text messages. (ECF No. 109.) They do not argue that the practice ceased upon notice of the pending lawsuit. In fact, Defendants provided dates for the text messages produced by Defendant Shackleton, (ECF No. 107-1, PageID.931), all of which were months after Plaintiff's counsel sent the first litigation hold notice on June 9, 2020 (ECF No. 108, PageID.948-949). Furthermore, these text messages contain communications that are responsive to France's production requests. For example, France's first production request dated May 25, 2021 reads: “Please produce all communications and documents relating in any way to Plaintiff, her job performance, This Litigation and/or The Prior Litigation from January 1, 2017 to present, including, but not limited to ... text messages ....” Shackleton produced the following text messages between him and German (in blue) and from him to Savoie (in green): (ECF No. 108-1, PageID.952,957.) Both are clearly responsive to France's request. Moreover, both are relevant to the claims in this case, which focus on Defendants’ allegedly unlawful termination of France's employment (ECF No. 77). These messages demonstrate that the forensic imaging of Savoie and German's phones is likely to reveal relevant information that is not otherwise discoverable. See Playboy Enterprises, Inc. v. Welles, 60 F. Supp. 2d 1050, 1051 (S.D. Cal. 1999) (ordering the forensic imaging of the defendant's computer based on defense counsel's concession that plaintiff “had a custom and practice of deleting electronic mail soon after sending or receiving e-mail,” that continued throughout litigation). Further, France has appropriately narrowed her request to the forensic imaging of text messages and communications sent through messenger applications in addition to proposing a protocol tailored to protect Savoie and German's privacy interests—one through which defense counsel reviews the forensic images after they are created, identifies responsive communications, and produces only those communications. The Court is thus satisfied that forensic imaging is proportional to the needs of this case. Hardy v. UPS Ground Freight, Inc., No. 3:17-cv-30162, 2019 WL 3290346, at *2 (D. Mass., July 22, 2019) (determining that forensic imaging was disproportional where the requesting party did not propose a limitation to its access to confidential or privileged information); Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645, 652-53 (D. Minn. 2002) (finding that forensic imaging was proportional where the plaintiff proposed that the defense identify the responsive ESI and produce only the discoverable information). While France has established that forensic imaging is appropriate here, the Court recognizes that such imaging can be costly, and that shifting imaging costs to the requesting party is sometimes appropriate to protect the responding party from undue burden. Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 284 (S.D.N.Y. 2003). The propriety of such a shift depends on the circumstances of the case, including: (1) the extent to which the request is narrowly tailored to discover relevant information, (2) the availability of the information from other sources, (3) the total cost of production, compared to the amount in controversy, (4) the total cost of production, compared to the resources available to each party, (5) the relative ability and incentive of the parties to control costs, (6) the importance of the issues at stake, and (7) the relative benefits of obtaining the information for both parties. Id. *3 As recognized above, France's request is narrowly tailored, and the communications France seeks to uncover are not available through less-invasive means. The parties provided cost estimates for the imaging that range from $750 to $1000 per phone. (ECF No. 107, PageID.927; ECF No. 108, PageID.943.) France seeks past and future lost wages and benefits, compensatory damages for mental and emotional distress, and more. (ECF No. 77, PageID.763-771.) Defendants are Chippewa County Officials, presumably having access to County resources, and France is a former employee alleging that she was unlawfully terminated in December of 2020. Further, the imaging has been made necessary by Defendant Savoie and former Administrator German's conduct in deleting messages that they were specifically directed to preserve. For these reasons, the Court finds that shifting costs from the producing party to the requesting party is not appropriate in this case. As mentioned above, France has proposed a procedure wherein defense counsel selects the forensic expert to image the phones, provides the expert with the phones to be imaged, and then searches the images for communications that are responsive to France's production requests and produces only those images. (ECF No. 108, PageID.938-939.) Once again, this procedure is adequately tailored to protect the privacy interests of Savoie and German and is not unduly burdensome. In fact, defense counsel indicated that he has already consulted with such an expert about the potential for forensic imaging in this case. (ECF No. 107, PageID.927.) Accordingly, the parties shall utilize France's proposed procedure. France's motion to compel the forensic imaging of Savoie and German's cellular devices is hereby GRANTED and Defendants’ request to shift the cost of imaging is DENIED. IT IS SO ORDERED.