United States District Court, W.D. Michigan, Southern Division
Robert J. Jonker Judge
PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE
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. The Court conducted two evidentiary
hearings on the pending motion. (Minutes, ECF No. 69, 72).
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
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.
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).
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).
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).
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.
[Mr. Day]: But do you understand what I've said about it
[Plaintiff]: Right. I understand.
(Id. at PagelD. 125-26).
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
(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
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