Discovery From Cell Phones – Differing Civil and Criminal Protocols in Maryland

The Fourth Amendment to the U.S. Constitution makes a big difference.  This is illustrated by two recent Maryland appellate decisions – – one civil, the other criminal – – regarding discovery from cell phones.  Cf. Richardson v. State, 481 Md. 423 (2022)(criminal), with St. Francis Academy, et al. v. Gilman School, Inc., 2022 WL 833371 (Md. Ct. Spl. Apls., Mar. 21, 2022)(civil)(unreported).[1]  In a civil case, an entire cell phone can be imaged and searched under a strict protocol.  In a criminal case, absent probable cause or unique circumstances, it cannot.

• In the civil case, the Maryland Court of Special Appeals authorized a search of the entire cell phones of non-parties, under a stringent protocol. It authorized use of a third-party vendor to extract all of the information from the phones, run a list of search terms, provide the “hits” to the owners of the phones for pre-production review, and it then required production of the responsive, non-privileged data.
• In the criminal case, the Maryland Court of Appeals prohibited warrants calling for a search of the entire cell phone and, instead, mandated a focused request that is limited by the probable cause requirement of the Constitution.

DISCOVERY OF NON-PARTY CELL PHONES IN A CIVIL TORT CASE

St. Francis Academy v. Gilman involved an alleged civil tort.  Plaintiff was a high school football player who was injured on Gilman’s football field while he was playing for St. Francis Academy.  His parents sued, alleging that the Gilman field was in a defective condition. Defendant Gilman served subpoenas on two non-party St. Francis Academy coaches seeking cell phone data.  The coaches objected. Resolving cross motions to compel and for a protective order, the Court ordered imaging of the entire phones and directed a strict search and production protocol.  The coaches appealed.

In the words of the coaches’ brief, one question was “under what circumstances may a non-party be compelled to relinquish all his private cell phone data to a third-party for extraction and production to a litigant in a civil case?” [emphasis added].  The answer was that the data had to be relinquished under a strict search and production protocol.

As explained in Maryland Appellate Decision Permitting Limited Forensic Search of Non-Parties’ Cell Phones, Gilman offered use of the third-party vendor to extract information from the phones.  Gilman’s supporting affidavit explained: “The parties can apply keywords and date filters to search [the forensic image] for relevant data. Only the relevant hit data that is promoted for review is viewed by a human in a readable, non-encrypted form.”  Additionally, Gilman “would limit its search [of the image] to text messages to and from a specified list of individuals….” Gilman told the court that “[the coaches’ counsel] can be the very first person to look at the text messages….”

Step 1 was forensic imaging of the cell phones.  The forensic image was an image of the entire cell phones.  The coaches’ brief states that “[A]s part of discovery in the case, Gilman served subpoenas on Mr. Russell and Mr. Hailemariam seeking to extract all the data from each coach’s personal cell phone, ostensibly to look for relevant text messages….” Brief, 2022 WL 463998 (Md.App.), 1, 2 (emphasis added); accord St. Francis Academy, 2022 WL 833371, at *1 n. 4 (“forensic extraction’ is a mirror image “of the device” and a bit-for-bit duplication of “all allocated and unallocated space”).  The coaches’ Brief also states:

The third-party vendor, EPIQ eDiscovery Solutions, Inc. (hereinafter “EPIQ”), engaged by Gilman to perform the data extraction, cannot just extract text message data. To retrieve the text messages from the cell phone, this vendor must extract all the data on the cell phone first. Then, after all the data is extracted, it is analyzed, searched, and categorized by EPIQ. …. Once all the data is extracted, the EPIQ employee asks for the cell phone owner’s consent to take the hard drives to a laboratory in Phoenix, Arizona for further data manipulation outside of the cell phone owner’s presence and control. At the laboratory, EPIQ converts all of the data into a searchable format. Once all the data is manipulated into a searchable format, then text messages can be identified, viewed, and produced. [emphasis added; citations to the record are omitted].

Additionally, the coaches’ reply brief refers to creation of a hard drive containing “all of Appellants’ personal data – emails, photographs, videos, contacts, internet search history, calendars, telephone logs, passwords, applications, and anything else that can be put on a modern cell phone – extracted and given to a third-party vendor out of their possession and control.”  Appellants’ Reply Brief, 2022 WL 801380 (Md.App.), 1.

Appellee Gilman’s brief is in accord when it comes to the scope of the forensic image. Gilman described in part the process as: “All data must be pulled off of the phone for preservation purposes….The parties identify the relevant data (e.g., text messages, pictures, music)…. The relevant data is pulled off of the hard drive.”  Appellee’s Brief, 2022 WL 706632 (Md.App.), 8.

However, Gilman continued: “Appellants’ argument that they “are being asked to surrender all the data on their personal cell phones” is misleading…. Gilman has never sought to receive all of the data on the Coaches’ phones. Gilman has made clear that it is only interested in receiving text message communications that are relevant to the Underlying Case.” Id. at 19.

In response, the coaches argued “that all the protections are instituted only after the data has been taken from the owners’ possession and the invasion of privacy has occurred.” The coaches asserted that their privacy was not adequately protected.

However, the appellate court affirmed the search protocol.  It stated that the only issue was whether the third-party vendor could take the imaged data to its facility for forensic analysis.  It concluded that this is not “a drastic change in Maryland law.” The Court of Special Appeals noted the trial court’s broad authority to fashion protective orders.   It wrote that “the Coaches did not challenge relevancy….” Their opposition was based on privacy concerns and alleged exposure to potential data theft, misappropriation, and unauthorized dissemination.

The Court carefully balanced the competing interests. It recognized that the coaches were in “the unique position of non-parties in the production of discovery” and their valid concerns about the security of their data. The intermediate appellate court also weighed “Gilman’s need for relevant information” and the methodology proposed.

The Court found that the vendor’s protocol – – involving an image of two entire cell phones – – posed only “a minimal risk” to privacy.  The imaged data would be encrypted. The only data that would be unencrypted would be material matching the search parameters.[2]

The Court noted that the coaches and their counsel could conduct pre-production review:

Importantly, the [trial] court’s order provided that “the SFA Parties shall be permitted to review the text messages that fall within the specified parameters for relevance prior to production to Gilman.”

It wrote: “We conclude that the court’s order reasonably protects the Coaches’ privacy interests and, in the end, represents a measured and balanced approach to the production of the Coaches’ electronically stored data.” [emphasis added].[3]

In short, in civil discovery, it is reasonable to image entire cell phones and have a third-party conduct keyword searches of specified areas, such as text messages, with pre-production review of “hits” by the phones’ owners. That is not the case in the context of a search warrant.  Of course, in the warrant context, there is no pre-production review by the phone’s owner.

DISCOVERY FROM A CELL PHONE IN A CRIMINAL CASE

Richardson v. State was a criminal case involving robbery and a handgun.  In pertinent part, the State’s highest court[4] limited the breadth of warrants to search cell phones. Quoting the Supreme Court, the Maryland Court wrote:

 Because today’s smartphones contain information touching on “nearly every aspect” of a person’s life, “from the mundane to the intimate,” an unfettered search of a cell phone by law enforcement will “expose to the government far more than the most exhaustive search of a house.”… Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life.”

Oversimplifying a complex chain of events, the police lawfully seized a cell phone.  They then obtained a search warrant.  The Court held that the warrant was too broad; however,  because the issue was a novel one, there was a good faith exception to suppression.  Future search warrants must comply with the Richardson standard.

The search warrant stated:

You shall seize the following items, evidence, and/or contraband:

All information, text messages, emails, phone calls (incoming and outgoing), pictures, videos, cellular site locations for phone calls, data and/or applications, geo-tagging metadata, contacts, emails, voicemails, oral and/or written communication and any other data stored or maintained inside of T-Mobile Space Gray iPhone SE IMEI: 356600080434043. [emphasis modified].

The Court wrote: “The search of the T-Mobile iPhone SE revealed text messages between Richardson and Grant discussing and planning robberies through use of the letgo app. Police extracted approximately 6,000 pages of material from the T-Mobile iPhone SE.”

The intermediate appellate court “opined that the warrant met the particularity requirement of the Fourth Amendment, based on the court’s conclusion that ‘the detailed, particularized facts provided in the application and affidavit were incorporated into the search warrant[.]’”

Maryland’s highest court applied the “particularity requirement” of the Fourth Amendment, which prohibits general searches and requires careful tailoring of a search.  Again quoting the Supreme Court, the Maryland Court wrote:

Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

One of the most notable distinguishing features of modern cell phones is their immense storage capacity…. [It is] no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives – from the mundane to the intimate.

The Court agreed that the “particularity requirement is arguably of even greater importance in the context of computers and smartphones than it is in the physical world, given the ability of smartphones to store ‘millions of pages of text, thousands of pictures, or hundreds of videos….’” [emphasis added]. It wrote:

Without understating the problem posed by a general warrant to search someone’s home prior to the digital age, a general warrant to search a computer or a smartphone today magnifies that problem exponentially.

The Court of Appeals described the problem posed by technology:

[I]ssuing judges have sometimes been caught between a rock and a hard place, attempting to ensure the particularity that the Fourth Amendment requires without unduly hampering law enforcement officers from obtaining the evidence that the affiant has shown is probably located somewhere in a cell phone or another electronic device. [emphasis added].

After a review of federal cases, the Court recommended “that issuing judges in Maryland consider including search protocols in cell phone search warrants in appropriate cases.”  It also wrote that the Court “expect[s] that law enforcement officers who apply for cell phone search warrants will suggest specific search protocols in appropriate cases.”

The Court provided additional guidance:

In some cases, rather than requiring search protocols, which restrict how law enforcement officers search a cell phone, issuing judges may decide to impose limits on where the officers may search in the phone, or on what specifically they may look for, and for which time period(s)…. For example, if there is probable cause to believe that evidence of a crime will be found in text messages, but not in photos, videos, or any other applications on a particular phone, then the issuing judge reasonably may limit the search warrant to the text messaging applications found on the phone, rather than authorize the officers to access the entire phone.

Quoting a federal case, it added “[j]ust as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe drug trafficking communication may be found in [a] phone’s … mail application will not support the search of the phone’s Angry Birds application.”  [emphasis added]. The Court added:

Perhaps the most common limitation that issuing judges should consider including in a warrant to satisfy the particularity requirement is a temporal restriction.

Thus, a search warrant for “any or all files” is an overbroad authorization to search everything.  “Catchall phrases” are not permitted. Cf. Requests for “Any and All” Documents Are Obsolete (similar principle in civil cases).

The Court of Appeals recognized that there are exceptions to the limitation, where there is probable cause to believe that a narrower search will miss hidden or mislabeled evidence.   It pointed to, for example, child pornography and financial crimes cases as examples where perpetrators purposely mislabel or hide files.  “Thus, a search warrant authorizing a broad forensic analysis of a cell phone can be appropriate where the warrant limits the search for evidence of one of these crimes….”

The Richardson Court concluded:

There is no “one size fits all” solution for ensuring particularity in cell phone search warrants. In submitting and ruling upon every application for a cell phone search warrant, the affiant and the issuing judge must think about how to effectively limit the discretion of the searching officers so as not to intrude on the phone owner’s privacy interests any more than reasonably necessary to locate the evidence for which there is probable cause to search. “[T]he ultimate touchstone of the Fourth Amendment is reasonableness.” Riley, 573 U.S. at 381-82, 134 S.Ct. 2473 (internal quotation marks and citation omitted).

Under Richardson, temporal restrictions, limitations on the applications that will be searched, or search protocols can be used to provide the specificity required.  The Court also left open the door for a second warrant if the first provides a basis for it:

Ultimately, the key point is that a search warrant for a cell phone must be specific enough so that the officers will only search for the items that are related to the probable cause that justifies the search in the first place….  While reasonable minds may differ at times on whether a warrant is sufficiently particular, one thing is clear: given the privacy interests at stake, it is not reasonable for an issuing judge to approve a warrant that simply authorizes police officers to search everything on a cell phone. Because that is what the search warrant did in this case, it violated the particularity requirement of the Fourth Amendment.

CONCLUSION

St. Francis Academy is unreported and was decided under civil discovery rules by the intermediate appellate court.  Pre-production review by the owner of the cell phones appears to have been a key feature of the decision.

Richardson was decided under the Fourth Amendment by the State Supreme Court.  In St. Francis Academy, it was held to be reasonable to image non-parties’ cell phones in their entirety, direct a focused search by a third-party vendor, and order production of responsive, non-privileged information after pre-production review by the cell phone owners.  In Richardson, it was held that a search warrant for entire cell phones was, with limited exceptions, generally unreasonable under Constitutional protections for those charged with crimes.  An important distinguishing fact is that, in the context of a search warrant, there is no pre-production review by the phone’s owner.

It remains to be seen whether civil litigants will make Richardson arguments in civil discovery.

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[1] Under Md. Rule 1-104, unreported opinions may not be cited in any paper, motion, or other document filed in a Maryland court either as precedent or as persuasive authority.

[2] The Court considered the vendor’s two-factor authentication and other vendor security measures.

[3] One may also speculate that the reasonable offers and efforts of Gilman’s counsel to cooperate, and Gilman’s offer to pay the costs, were also key factors.

[4] In the November 2022, election, voters approved a Constitutional amendment changing the Court’s name from the “Court of Appeals of Maryland” to the “Supreme Court of Maryland.”