Another Decision on Forensic Imaging of an Opponent’s Cell Phone

I recently posted a blog about cell phone imaging, discussing Madrigal v. Live Nation Entertainment, Inc., 2026 WL 1196245 (C.D. Cal. Apr. 24, 2026).  See Motion to Compel Forensic Image of Cell Phone: Granted in Part; Denied in Part (May 7, 2026).

In Rubesne Resources LLC v. ACE Property and Cas. Ins. Co,. 2026 WL 1251605, at *5 (D. Col. May 7, 2026), “ACE’s principal request in the Motion to Compel is that the court order a forensic examination of Ms. Rubesne’s cell phone by an expert to be identified and retained by ACE, who would be tasked with creating a mirror image of the device in order to attempt to recover any deleted social media and text messages within the circumscribed timeframe of December 1, 2023, to January 7, 2024, and to identify any deletion activity concerning this narrow group of texts.

The court wrote:

To begin with the governing legal principles, “[w]hen determining whether to grant a motion to compel the forensic imaging of a cell phone or other electronic device, courts have considered whether the examination will reveal information that is relevant to the claims and defenses in the pending matter and whether such an examination is proportional to the needs of the case given the cell phone owner’s compelling privacy interest in the contents of his or her cell phone.” … The court may compel a forensic examination of a personal device when the moving party demonstrates that the opposing party has concealed information or lacks the expertise necessary to search and retrieve all relevant data. … “Further, before permitting an intrusion into an opposing party’s information system—particularly where that party has undertaken its own search and forensic analysis and has sworn to its accuracy⁵ —the inquiring party must present at least some reliable information that the opposing party’s representations are misleading or substantively inaccurate.”…

Id. at *5.

On the facts presented: “The court finds that ACE has come forward with sufficient reliable information indicating that Rubesne’s representations concerning the Missing Texts are misleading, if not inaccurate, and that the nebulous circumstances surrounding Rubesne’s own forensic examination call into question whether all avenues have been exhausted to search and retrieve potentially available information from Ms. Rubesne’s cellular phone for examination. Additionally, the court concludes that no other legal barrier precludes the issuance of an order directing Rubesne to produce the device. In so finding, the court emphasizes four key points.”  Id.

One of many points in the court’s comprehensive analysis was:

[T]he first forensic examination completed by Rubesne, concerning which no particulars have been revealed, was undertaken without notice to ACE. Had Rubesne immediately owned up to the Missing Texts, and conferred with ACE before having Ms. Rubesne’s phone examined, the instant dispute may have been averted. The parties might have agreed on a neutral third-party forensic expert, as well as the parameters of a forensic examination. As things stand, however, Rubesne has conducted its own forensic examination, but would have the court preclude ACE from conducting a similar analysis—leaving ACE (and the court) to take Rubesne’s word for it that there is no other responsive, non-privileged information to be extracted from Ms. Rubesne’s phone. In light of the record described above, the court perceives no justification for countenancing this unequal approach and finds that ACE is entitled to test the integrity of Rubesne’s forensic examination by conducting one of its own.

Id. (emphasis added).

See generally:

• Is There a Duty to “’Fess Up?” – Part II
• Is There a Duty to “’Fess Up?”
• Candor Pays Off When It Comes to Alleged Spoliation: Notice + Accrual = Claims Bar