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Pearce v. Emmi

United States District Court, E.D. Michigan, Southern Division

February 9, 2017

MEGAN PEARCE, individually and as next friend of BABY B, her infant child, Plaintiffs,
MICHAEL EMMI, Defendant.




         This matter is before the Court on Plaintiffs' Motion to Compel the Oakland County Sheriff to Comply with the Subpoena to Produce Cody Fuhrman's I-Phone (docket no. 15), Plaintiffs' Motion to Quash Defendant's Subpoena to Metro PCS (docket no. 30), and Plaintiffs' Motion to Quash Defendant's Subpoena to Verizon Wireless (docket no. 31.)[1] The Oakland County Sheriff's Office filed a Response (docket no. 19) to Plaintiffs' Motion to Compel.

         Defendant Emmi filed a Response (docket nos. 36, 37) to each of Plaintiffs' Motion to Quash.

         This matter has been referred to the undersigned for all pretrial proceedings. (Docket no. 24.)

         The Court has reviewed the pleadings and dispenses with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). The Court is now ready to rule pursuant to 28 U.S.C. § 636(b)(1)(A).

         I. Background

         Plaintiffs Megan Pearce and her infant child filed this action against Hazel Park Police Officer Michael Emmi, in his individual capacity, on April 26, 2016. They assert claims under 42 U.S.C. § 1983, the Federal Wiretapping Act, and provisions of Michigan state law. (Docket no. 1.) They allege that Defendant Emmi viewed Plaintiff Pearce, in the nude, breastfeeding her child on two occasions in March 2016 through a “Nest Cam” that Plaintiff Pearce installed in the child's nursery.

         According to Plaintiffs, the Nest Cam is a motion-sensitive security camera that allows users to monitor their homes remotely using a cell phone or other device that connects to the Internet. Users receive a notification through their device whenever the Nest Cam is activated, and, when a user is monitoring the Nest Cam's feed through their device, an external light on the Nest Cam flashes. (Id. at 2.) The Nest Cam also “retains IP address logs regarding device access.” (Docket no. 14 at 2.) Plaintiff Pearce claims that the only devices which had access to her Nest Cam were her cell phone, her iPad, and the cell phone belonging to her fiancé, Cody Fuhrman, who is also the child's father. Mr. Fuhrman had recently been arrested on March 2, 2016, in connection with a marijuana growing operation, and had his cell phone seized by the Oakland County Sheriff's Office. Defendant Emmi participated in the execution of the search warrant on Mr. Fuhrman's property, along with other officers from the Hazel Park Police Department and the Oakland County Task Force Narcotics Enforcement Team. (Docket no. 1 at 4.)

         Plaintiff Pearce claims that, as she was breastfeeding her child, she noticed that the Nest Cam light began to flash, indicating that a device was connected to the camera's feed. Because she was in possession of her own phone and iPad, she believes that the device was Mr. Fuhrman's cell phone. She then allegedly looked up the location of the phone using the “Find my iPhone” application on her laptop, and discovered that Mr. Fuhrman's phone was located in what was revealed to be the residence of Defendant Emmi. (Id. at 2-3.) At that point, she claims that she attempted to “disable the phone's monitoring capability, and thought she was successful.” (Id. at 3.) Later that evening, however, also while breastfeeding her child, Plaintiff Pearce claims that she noticed the external light began flashing again. This time, she was on the phone with her brother and allegedly exclaimed, “Oh my God, someone is watching me again!” She claims that immediately thereafter, the light stopped flashing, indicating that the device was disconnected from the Nest Cam. (Id.)

         II. Plaintiffs' Motion to Compel

         District Judge George Caram Steeh entered a scheduling order for this case on June 29, 2016. (Docket no. 13.) On July 15, 2016, Plaintiffs delivered a subpoena to the Oakland County Sheriff's Office (the “OCSO”), requesting production of Mr. Fuhrman's cell phone “for forensic examination” by Mr. Mark St. Peter, a certified forensic computer examiner. (Docket nos. 15 at 3; 15-1 at 2.) Plaintiffs requested that the phone be produced on May 16, 2016, at 3:00 p.m., at Computing Source, Mr. St. Peter's place of business in Madison Heights, Michigan. (Docket no. 15-1 at 2.) The OSCO objected to the subpoena, prompting Plaintiff to file the instant Motion to Compel.

         A subpoena to a third party under Rule 45 is subject to the same discovery limitations as those set out in Rule 26. See, e.g., Martin v. Oakland Cty., No. 2:06-CV-12602, 2008 WL 4647863, at *1 (E.D. Mich. Oct. 21, 2008). Under Rule 26, parties may obtain discovery on any matter that is not privileged and is relevant to any party's claim or defense if it is reasonably calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1). “Relevant evidence” is evidence having the tendency to make the existence of any fact that is of consequence to the determination of the action “more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. But the scope of discovery is not unlimited. “District courts have discretion to limit the scope of discovery where the information sought is overly broad or would prove unduly burdensome to produce.” Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007). If the party served with the subpoena objects or fails to respond, Rule 45 provides the party who served the subpoena the means to file a motion to compel. Fed.R.Civ.P. 45(d)(2)(B)(i).

         Additionally, under Rule 45, the party issuing the subpoena is required to “take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed.R.Civ.P. 45(d)(1). To determine whether a burden is undue, a court must balance the potential value of the information to the party seeking it against the cost, effort, and expense to be incurred by the person or party producing it. Lowe v. Vadlamudi, No. 08-10269, 2012 WL 2887177, at *2 (E.D. Mich. Sept. 7, 2012) (citing Am. Elec. Power Co., Inc. v. United States, 191 F.R.D. 132, 136 (S.D. Ohio 1999); EEOC v. Ford Motor Credit Co., 26 ...

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