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Williams v. State Farm Fire and Casualty Co.

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

November 14, 2019

Ronnie Williams, Plaintiff,
v.
State Farm Fire and Casualty Company, Defendant.

          Hon. Robert J. Jonker Judge

          MEMORANDUM OPINION

          PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE

         This case has become mired in a discovery dispute, largely due to Plaintiffs failure to take his discovery obligations seriously. Presently before the Court is Defendant's motion to compel production of Plaintiffs iPhone 7 Plus and to sanction Plaintiff for his violation of the Court's previous order (see ECF No. 39) to produce that cell phone for forensic analysis. (ECF No. 55). Plaintiff filed no response.[1] The Court conducted two evidentiary hearings on the pending motion. (Minutes, ECF No. 69, 72).

         Having considered all the evidence, and for the reasons articulated below, the Court finds that plaintiff intentionally disposed of his iPhone 7 Plus cell phone to avoid his discovery obligations. Accordingly, and for the reasons articulated below, the Court will grant Defendant's motion to compel. As for Defendant's motion for sanctions, the Court will grant it in part, deny it in part, and dismiss the remainder of the motion without prejudice. The Court will sanction Plaintiff in the form of awarding Defendant's reasonable costs and fees in bringing the instant motion (ECF No. 55), as well as those reasonable costs and fees Defendant incurred after February 4, 2019, associated with its earlier motion to compel (ECF No. 28), including the expense of the forensic analysis.

         Procedural History

         Plaintiff Ronnie Williams filed suit in Kent County Circuit Court, claiming breach of contract and bad faith refusal to settle a claim relating to the alleged burglary of his home on November 27, 2016. (ECF No. 1-1, PagelD.7-11). Defendant State Farm had denied the claim under the concealment or fraud provision of Plaintiffs insurance policy, contending that Plaintiff had "intentionally misrepresented and concealed material facts and circumstances relating to [the claimed] loss which bars [his] claim and voids the policy effective November 27, 2016." (ECF No. 1-1, PageID.13). Defendant removed the case to this Court under diversity of citizenship jurisdiction. (ECF No. 1). The bad faith claim was later dismissed by stipulation of the parties. (ECF No. 11).

         Defendant asserts that Plaintiff misrepresented a number of material facts relating to the alleged burglary, including "the circumstances surrounding the alleged burglary and theft," Plaintiffs "whereabouts at the time of the alleged theft," and his "cell phone records." (Answer, ECF No. 9, PageID.55). Defendant contends that Plaintiffs claim is barred by his commission of common law fraud. (Id. at 56).

         On July 26, 2018, Defendant served discovery requests seeking information about any cell phone Plaintiff owned or possessed in November 2016, including the brand and model of the phone, the carrier, and the phone number assigned. (Def s Interrog. 6, ECF No. 28-1, PageID.134). Defendant also asked Plaintiff to produce copies of "any and all call/texting logs for October 1, 2016 - December 31, 2016," and "all text messages from November 24-28, 2016." (Def s Interrog. 6(f), (g), PagelD. 134).

         Plaintiff responded on September 7, 2018, identifying the only cell phone he owned or possessed during the relevant time frame as an Apple iPhone 7 Plus, with Sprint as the carrier. Plaintiff stated that he had no call/texting logs (apart from billing records already produced), and that his counsel intended to serve Sprint with a subpoena to obtain the remainder of the records. (Pltf s Resp. to Interrog. 6(f), ECF No. 32-1, PagelD. 154-55). And in response to the request for the text messages, Plaintiff stated:

Plaintiff does not have a copy of all text messages from November 24-28, 2016. The iPhone 7 Plus telephone he had in November 2016 was subsequently stolen and he is unable to access the text messages that were made from and stored on that telephone. Plaintiff will work with counsel in an attempt to obtain the text messages from Apple, but it is uncertain whether they are available.

(Pltfs Answer to Interog. 6(g) at PagelD. 155).

         Defendant noticed Plaintiffs deposition for November 13, 2018, which included a request that Plaintiff produce at the deposition "[a]ny and all cellular telephones in his ownership or possession on or about [] November 27, 2OI6[, ] and any and all cellular telephones currently in his ownership or possession. (ECF No. 28-1, PagelD. 120-21). During the deposition, Plaintiff objected to the examination of his cell phone. (Pltfs Dep. at 7-9, ECF No. 28-1, PagelD. 125-27). Defendant's counsel (Devin Day) advised Plaintiff of his intention to seek a court order compelling the production of information from Plaintiffs cell phone. (Id. at PagelD. 125). Counsel also advised Plaintiff of his duty to preserve the evidence on his cell phones:

[Mr. Day]: But I'll say to Mr. Williams, your phone and phones are evidence. And it's important that you don't erase anything, alter anything, destroy anything electronically or otherwise with regard to the phones. That's evidence and needs to be preserved. Okay?
[Plaintiff]: They already subpoenaed phone records. They have the phone records. I provided phone records. So with that being said, that's more than enough. I mean -
[Mr. Day]: I understand you may think that. But there's more information that I'm interested in.
[Plaintiff]: Oh, well, I don't have that phone anymore.
[Mr. Day]: It doesn't matter whether you have the device.
[Plaintiff]: Right.
[Mr. Day]: But do you understand what I've said about it being evidence?
[Plaintiff]: Right. I understand.

(Id. at PagelD. 125-26).

         On December 14, 2018, Defendant filed a motion to compel discovery. (ECF No. 28). Specifically, Defendant sought an order requiring Plaintiff "to produce his cell phone for forensic download of data and information relevant to this litigation." (Id. at PageID.108). Defendant contended that the cell phone data is relevant:

[I]t contains information regarding Plaintiffs whereabouts at or around the time of the alleged theft including GPS data and Wi-Fi connectivity, the content of text messages sent and received at or around the time of the alleged theft, the content of internet searches at or around the time of the alleged theft, and voicemails and missed/made telephone calls.

(Id.). Defendant's counsel noted that a cell phone forensic expert had advised "that the data from the stolen phone may still be recovered from online sources and the replacement telephone itself." (Id. at PageID.110).

         On February 7, 2019, the Court held a hearing on Defendant's motion to compel. (Minutes, ECF No. 38). The hearing had been noticed a week earlier, on January 31, 2019. (Notice, ECF No. 37). Immediately following that hearing, the Court granted the motion to compel, in part, ordering that a forensic ...


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