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Pearce v. Emmi

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

May 8, 2017

MEGAN PEARCE, individually and as NEXT FRIEND of BABY B, her infant child, Plaintiff,
MICHAEL EMMI, Defendant.



         This matter is presently before the Court on defendant Michael Emmi and non-party Oakland County Sheriff's Office's (OCSO) motion, (Doc. 41), for reconsideration/objection to Magistrate Judge Majzoub's Opinion and Order, (Doc. 39), dated February 9, 2017.

         Pursuant to E.D. Mich. LR 7.1(h)(2), motions for reconsideration are typically decided without response briefs or oral argument. Here, however, defendant Emmi and the OCSO's motion raised four issues not previously presented to Magistrate Judge Majzoub. The Court, therefore, ordered additional briefing and held oral argument on March 28, 2017. For the reasons stated below, defendant Emmi and the OCSO's motion is GRANTED IN PART AND DENIED IN PART.

         I. Background

         Plaintiff Megan Pearce, individually and as next friend of Baby B, her infant child, sued defendant Michael Emmi, asserting claims under 42 U.S.C. § 1983, the Federal Wiretapping Act, and provisions of Michigan state law. Plaintiff alleges that defendant viewed her breastfeeding her infant in the nude on two occasions in March 2016, by accessing a “Nest Cam” application installed on the iPhone of Cody Fuhrman, Plaintiff's fiancé, after Fuhrman's phone was seized by the OCSO.

         Nest Cam is an electronic monitor that provides a live audio visual stream. The monitor pairs with an application that users download onto electronic devices like cellphones and tablets. The monitor has a motion sensor and sends a notification to the application installed on the user's electronic device(s) when it detects motion in the room. After receiving such a notification, the user may open the application and observe the audio and video captured by the monitor. The monitor has a small green light, which flashes when the audio and visual live stream is monitored through the Nest Cam application on an electronic device.

         Plaintiff downloaded the Nest Cam application on three devices - her cellphone, her iPad tablet, and Fuhrman's cellphone.

         On or about March 2, 2016, Defendant Emmi led a search which resulted in Fuhrman's arrest and the seizure of his cell phone. The phone was purportedly logged into the Oakland County Jail Computer Crime Lab that same day.

         On or about March 3, 2016, Plaintiff noticed the monitor's green light flashing while she lay naked breastfeeding Baby B. Plaintiff's iPad was turned off and her iPhone was not monitoring the Nest Cam. Therefore, Plaintiff questioned whether Fuhrman's iPhone - the only remaining device paired with her Nest Cam monitor - was being used by a stranger to watch her nurse Baby B. Plaintiff purportedly used the “Find my iPhone” application to determine that Fuhrman's iPhone was located at the address where defendant Emmi resides.

         Plaintiff seeks to examine Fuhrman's iPhone to collect evidence regarding her assertion that the iPhone was active at the times that she and her infant were spied upon. Plaintiff delivered a subpoena to the OCSO on July 15, 2016. The OCSO objected, claiming that the iPhone was related to an ongoing criminal investigation. Although Fuhrman is expected to plead guilty to state narcotics offenses, the OCSO retains his iPhone as evidence, claiming that Furhman may withdraw his guilty plea within six months of his sentencing. Plaintiff filed a Motion to Compel the OCSO to Comply with the Subpoena to Produce Fuhrman's iPhone. (Doc. 15). The OCSO opposed the motion, arguing that the examination would destroy the chain of custody and adversely affect their ability to prosecute Fuhrman. (Doc. 19 at PageID 154-55). The motion was referred to Magistrate Judge Majzoub and determined without oral argument pursuant to E.D. Mich. LR 7.2(f)(2).

         Magistrate Judge Majzoub granted plaintiff's Motion to Compel, finding that the relevance of the information potentially stored on the iPhone outweighed the risks identified in the OCSO's response, and ordered that the iPhone be produced by the OCSO for plaintiff's expert examination. (Doc. 39 at PageID 362). Additionally, “[t]o address the OCSO's valid concerns” Magistrate Judge Majzoub adopted a portion of the OCSO's alternative proposal, ordering that “a representative of the OCSO be allowed to attend, but not to obstruct or interfere with Mr. St. Peter's examination.” (Doc. 39 at PageID 363).[1] An OCSO representative was ordered to produce Fuhrman's phone for forensic examination by plaintiff's expert, Mark St. Peter, at Computing Source, 29401 Stephenson Highway, Madison Heights, MI 48071, by close of business on February 28, 2017. (Doc. 39 at PageID 362-63). St. Peter was ordered to download a copy of the phone's memory and provide it to the OCSO, at the OCSO's expense, before performing his examination. (Id.).

         Defendant Emmi and the OCSO now request the Court to order (1) St. Peter to view and note the open applications on Fuhrman's iPhone prior to conducting the examination; (2) the OCSO to remove the iPhone's SIM card prior to the forensic examination; (3) that Emmi's computer forensic examination expert may attend St. Peter's exam; and (4) that the iPhone be returned to the OCSO immediately following the examination.

         II. Analysis

         Plaintiff opposes defendant's request to permit his computer forensic examination expert to attend St. Peter's exam. (Doc. 44 at PageID 393). Plaintiff does not object to defendant Emmi and the OCSO's three other requests, but notes “that requiring Plaintiff's expert to turn over information to the OCSO, which is still involved in a criminal prosecution of Mr. Fuhrman, would allow the OCSO to obtain information without a warrant and implicate Mr. Fuhrman's Fourth amendment rights.” (Doc. 44 at PageID 393).

         The Court, therefore, must determine who may attend St. Peter's examination of Fuhrman's iPhone, and ...

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