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D.N.M.: Preservation Order Requires Extreme Caution In iPhone Data Transfers

Yesterday, in Ellis v. Hobbs Police Dep't, No. 17‐1011 KWR/GBW, 2020 U.S. Dist. LEXIS 37328 (D.N.M. Mar. 4, 2020), Magistrate Judge Gregory B. Warmuth ruled that the Plaintiff be prohibited from introducing any evidence of audio recordings from his iPhone (except for impeachment), but declined to dismiss the case. In this employment discrimination suit, Ellis had used his iPhone 6 to record conversations he had in his workplace, but failed to produce all recordings made on the phone to the Defendant. Ellis subsequently gave his iPhone to his daughter and transferred the data on this phone to a new iPhone 8. After a preservation order was issued to the data on the phone, the data on the iPhone 6 was transferred at a Verizon store to a new iPhone 7 for the Plaintiff's daughter. The technician at the store assured Ellis that no data would be lost.

The Court concluded that data on the iPhone 6 was destroyed by a factory reset, and the treatment of the phone had been reckless. Ellis's failure to understand the nature of data transfer was no excuse. "]T]his ignorance was all the more reason to exercise extreme caution in doing anything that might alter the information stored on the phone. Mr. Ellis himself did not know whether the data that Defendants sought existed on the iPhone 6, and he was bound to act accordingly by preserving whatever data remained. He did not take reasonable steps to do so. The fact that any deleted audio recordings would not have been helpful or relevant to the case is immaterial under the language of the Court's preservation order, which directed Mr. Ellis to preserve 'any . . . file/data associated with [any recording] app.'" Id. at *20-21.

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