December 4, 2017

As printed in The Daily Record, December 4, 2017

Dear John,

As a football fan and a newly admitted attorney, I have been following the Colin Kaepernick controversy with great interest. I read recently that as part of Kaeperrnick’s grievance against the NFL, team owners and league executives, who he alleges colluded to keep him out of the league, will be called to testify at depositions and will be required to turn over email communications and cell phone records that may relate to the collusion claim. I also read that owners and league officials might also be compelled to turn over their cell phones for examination. What is the likelihood that Jerry Jones, owner of the Dallas Cowboys, or Roger Goodell, Commissioner of the NFL, will really be forced to submit their personal cell phones to Kaepernick’s attorneys for examination?

Go Bills,

A Booster in Buffalo

 

Dear Booster,

First, as you note, the Kaepernick grievance is an arbitration proceeding, which is a process defined by the Collective Bargaining Agreement (CBA) between the NFL and the NFL Players Association. Though sparse, the rules for the arbitration proceeding are set forth in Articles 15 and 17 of the NFL CBA. With respect to discovery, the CBA states, in pertinent part, that the arbitrator “shall, for good cause shown, grant reasonable and expedited discovery upon the application of any party where, and to the extent, he determines it is reasonable to do so and it is possible to do so within the time period provided for his determination.”

So, the extent to which it is “reasonable and possible” to require Jones or Goodell to hand over their personal cell phones to Kaepernick’s legal team and whether Kaepernick shows “good cause,” appears to be at the fairly broad discretion of the arbitrator.

That said, the parties and the arbitrator might look to case law or rules of evidence for guidance. In federal court, a party is, as a general rule, entitled to discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and is proportional to the needs of the case, taking into account the importance of the issues at stake in the action, the amount in controversy, ease of access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. See Fed. R. Evid. 26(b)(1). This rule applies equally to the production of physical documents and electronically stored information.

When it comes to personal cell phones, as opposed to employer owned devices, the courts take into consideration the owner’s privacy interest in the information stored on their personal device. As noted by Chief Justice Roberts, in his opinion in Riley v. California, 134 S. Ct. 2473 (June 25, 2014), albeit in the context of searches incident to arrest, “[o]ne of the most notable distinguishing features of modern cell phones is their immense storage capacity.” This has several interrelated consequences for privacy.

For example, an internet search and browsing history found on an internet-enabled phone “could reveal an individual’s private interests or concerns — perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD.” Cell phone data can also reveal where a person has been. For instance, GPS location information is a standard feature on many smartphones and can reconstruct a person’s specific movements down to the minute and conceivably pinpoint a location down to a specific room in a building.

While this area of the law continues to adapt to rapidly changing technology, in general, courts have thus far been reluctant to give requesting parties unfettered access to personal devices or to order such devices to be submitted for forensic examination absent a showing of good cause. Courts often use a balancing act to determine whether a person must submit their personal cell phone for examination by a requesting party.

Generally speaking, the party who seeks unrestricted access to the information stored in their opponent’s or a third party’s personal electronic device must present a strong case for the need, counterbalanced by the heavy weight that courts give to privacy interests. Moreover, as the court in Gordon v. City of New York, 2016 U.S. Dist. LEXIS 91035 (S.D.N.Y. July 13, 2016) made clear, the party demanding ESI from an employee’s personal device has the burden to show that the employee used her personal device for work-related purposes. The Gordon court also considered whether the information alleged to be on an employee’s personal devices might instead be recovered elsewhere.

Under the NFL CBA, teams and the league, including their employees and agents, are forbidden from working together to deprive a player of an employment opportunity. Kaepernick will need evidence that at least two teams or the league and a single team conspired to keep him out of the league to prevail. It seems at least possible that such evidence of collusion, if it exists, could reside on the personal cell phones of Jerry Jones or Roger Goodell or any of the other respondents. If the arbitrator uses Fed. R. Civ. P.34(a)(1) as a guide, he may weigh Kaepernick’s right to inspect, copy or test ESI stored on a personal device belonging to any of the responding parties against that party’s privacy interests.

If Kaepernick can persuade the arbitrator: (1) that Roger Goodell or Jerry Jones’, or any of the other respondents or their employees or agents used their personal devices for business purposes; (2) that relevant data is likely to exist on those personal devices and that such data is not available elsewhere (on a team or league issued cell phone or email server, for example); and (3) that the need for the information stored on these devices outweighs the attendant privacy interests, then the arbitrator may indeed compel the owners and/or league officials to submit their personal cell phones for examination. That alone will likely be a victory for Kaepernick, regardless of the actual outcome of the grievance proceeding.

John Larimer is founder and managing attorney of Larimer Law. Send questions about e-discovery to info@Larimer-Law.com. Lawrence Bice and Jennifer Castaldo contributed to this article.