Burning Question on Cellphone and Social Media Privacy

Today’s burning question: Can the fire department look at what is on my cellphone or order me to given them access to what I post on my personal social media page?

Answer: As a general rule no. However, there are exceptions. Take, for instance, a case decided last week involving a Florida firefighter.

Sergio Valdes was fired by the Greater Naples Fire Rescue shortly after the department merged with the Ochopee Fire District in 2016. Valdes had been a firefighter with OFD and sued GNFR claiming his termination violated the Family Medical Leave Act (FMLA). He claims he was terminated after suffering “complications from a pre-existing condition exacerbated by fasting” for a fire department required medical exam.

GNFR claims Valdes’ “medical emergency was due instead to ‘illegal drug use’ that caused him to overdose while at work, noting that ‘drugs and paraphernalia’ were found in Plaintiff’s car following the incident.”

To bolster its case GNFR sought access to all of Valdes’ electronic communications devices (cellphone, iPads, tablets, etc.) so they could be forensically examined for messages “that included discussions about Plaintiff entering a drug rehabilitation facility following his alleged drug overdose, and thus ‘Plaintiff has used at least his cell phone to communicate pertaining to issues relevant to this litigation[.]’” GNFR also sought authorization to examine his social media accounts.  Valdes argued both requests would be a “a gross invasion of the Plaintiff’s privacy rights and is not remotely proportional to the needs of this case”.

In responding to GNFR’s motion to compel the production of this information, United States Magistrate Judge Carol Mirando explained the law as follows:

  • Motions to compel are committed to the discretion of the district court.
  • For a motion to compel the production of electronically stored information (“ESI”), the responding party does not need to provide “information from sources that the responding party identifies as not reasonably accessible because of undue burden or cost.”
  • Before granting a motion to compel forensic examination of electronic devices, the court must weigh the utility of the proposed examination against inherent privacy concerns.
  • Regarding discovery of ESI, the Middle District of Florida Discovery Handbook states, in relevant part:

The discovery of ESI should be proportional to the amount in controversy, the nature of the case and the resources of the parties. Rule 26(b)(2)(C) imposes a duty on the parties to balance the need for the discovery with the burdens of production. Rule 26(b)(2)(B) expressly provides that a party does not have to provide discovery of ESI that is not reasonably accessible because of undue burden or cost except on motion and order of the Court.

  • Further, “[i]nspection of an opponent’s computer system is the exception, not the rule and the creation of forensic image backups of computers should only be sought in exceptional circumstances which warrant the burden and cost.”
  • Here, the Court does not find exceptional circumstances exist to warrant the burden and cost of Greater Naples’ extensive request for production.
  • First, Greater Naples’ request for “all [Plaintiff’s] electronic devices and email account information[,]” for devices he owned from April 2016 to the present, including cell phones, computers, and iPads, is overly broad and not proportional to the needs of the case.
  • Further, as Plaintiff argues, Greater Naples’ request apparently is made for the purpose of discovering whether Plaintiff objectively was a drug user at any time from April 2016 to the present, while the causes of action under the FMLA and Fla. Stat. §440.205, and Greater Naples’ defenses, focus on Greater Naples’ subjective belief that Plaintiff used drugs and overdosed while on duty on October 27, 2016.
  • There is also little indication that relevant information regarding Plaintiff’s alleged drug use will be gleaned from Greater Naples’ extreme request for forensic inspection of all of Plaintiff’s electronic devices owned since April 2016, besides the fact Plaintiff previously produced some text messages and emails in which he allegedly discussed the possibility of entering drug treatment.
  • As to Greater Naples’ suggestion that Plaintiff be sanctioned for potential “spoliation of evidence[,]” there is no evidence of Plaintiff committing any intentional spoliation, and Plaintiff is not subject to sanctions without such evidence.
  • Further, Greater Naples’ proposed forensic examination would be invasive and likely uncover a wide range of personal and private information unrelated to Plaintiff’s FMLA
  • In weighing the utility of Greater Naples’ request against inherent privacy concerns, the Court finds the privacy invasion that Greater Naples’ expansive electronic investigation would involve outweighs the usefulness of the proposed investigation Although Greater Naples’ request to forensically examine all of Plaintiff’s electronic devices owned from April 2016 to the present is overly broad and not proportional to the needs of the case, it is possible responsive material exists on one or more of Plaintiff’s devices.
  • Greater Naples, however, has not met its burden to warrant an order compelling production of the devices; specifically, Greater Naples failed to sufficiently specify and tailor its requests and failed to supply sufficient information for the Court to determine what production to which Greater Naples may be entitled and fashion appropriate directives to the parties about such production.
  • The Court will therefore deny without prejudice Greater Naples’ request for an order compelling production of Plaintiff’s electronic devices for forensic examination.
  • The Court will grant, however, Greater Naples’ request to compel Plaintiff to execute and produce the Authorization form, as the Court finds this request reasonable, and Plaintiff does not oppose it.

Here is a copy of the decision: Valdes v. Greater Naples Fire Rescue Dist._ 2018 U.S. D

 

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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