February 28, 2019 Practice Points

Request for Inspection of Mobile Devices and Browsing History Denied as Over-Broad

Henson is an instructive application of the proportionality doctrine.

By Andrew J. Felser

A recent discovery ruling notes that it might sometimes be reasonable for a litigant to seek inspection of mobile devices and internet browsing history of the opposing party. That same court found that those requests were not relevant or proportional to the needs of the case before it.

Turn Inc. is a company that manages cookies for certain websites with which it partners. Two consumers, including Henson, sued Turn for violating their privacy rights. Turn allegedly planted “zombie” cookies on the plaintiffs’ mobile devices during visits to partner websites. A “zombie” cookie is a tracking cookie that cannot be removed or deleted and replicates itself on a device. Turn submitted three discovery requests to which the plaintiffs objected: [1] production of the plaintiffs’ mobile devices, or complete images of those devices, for inspection; [2] production of the full web-browsing history from the devices; and [3] production of all cookies stored on or deleted from the devices. The plaintiffs argued that the requests were over-inclusive and not proportional to the needs of the case. The plaintiffs offered to produce: [1] their web-browsing history and cookies from Turn’s partner sites, contingent on Turn producing the names of those sites; [2] date fields, excluding content, of all other cookies on their mobile devices. The dispute was submitted to the U.S. magistrate judge by means of a joint-letter brief. Judge Beeler agreed with the plaintiffs and adopted their proposal with one modification: The plaintiffs would also be required to produce the date-field entries in the browsing history. Henson v. Turn Inc., 2018WL5281629 (N.D.Cal. 10/22/2018).

The court noted that proportionality analysis is not restricted to production costs alone. The extent to which a discovery request may result in the production of extraneous personal information is also a factor. Since the sweep of a plaintiff’s mobile devices would disclose a substantial amount of extraneous and private data, the request was disproportionate in this particular case. For the same reason, the complete browsing history would exceed the bounds of what Turn needed to defend against the plaintiffs’ claims. The plaintiff’s proposal was proportionate and satisfactory.

Henson is an instructive application of the proportionality doctrine. It contains a reasoned discussion of the issue for future reference. One important lesson, echoed by other courts as well, is that proportionality factors are not limited to financial burdens.

Andrew J. Felser is an attorney in Denver, Colorado.


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