holdingthelineontherighttoPrivacYinFlorida , atleaStForcellPhoneS
Trial & litigation Section Chair : JasonWhittemore – WagnerMcLaughlinWhittemore thecourtrejectedSwezy ’ s positionthattheproposed cellphoneforensicreview shouldbepermittedasa “ quickerandmoreefficient ” meansofobtainingevidence .
The Right to Privacy has been kicked around quite a bit lately . Between state and U . S . Supreme Court decisions and data-hungry companies pushing the limits , privacy seems under assault . The state right under Article I , Section 23 of the Florida Constitution is also being tested . One recent decision has bolstered that right to privacy in an area increasingly common to civil discovery , cell phone usage and data . See Roque v . Swezy , ---So. 3d--- , 2024 WL1895141 ( Fla . 3rd DCA 2024 ).
Roque brought a claim against her domestic / business partner , Swezy , for various business claims , including breach of fiduciary duty , and for abuse , assault , and defamation . Swezy , at the beginning of discovery , before even interrogatories had been answered , requested an examination of Roque ’ s cell phone by a forensic expert . The expert would copy the entire cell phone data — every photo , video , text , email , note , download , deleted item , and all data / metadata . Swezy asserted that Roque had acquired pertinent information on her phone regarding the alleged abuse and assault . The trial court granted the request and Roque filed an interlocutory appeal .
The Third District Court of Appeal reversed , discussing at length Florida ’ s right to privacy . 1 Most important to the Court was the fact Swezy did not proffer any showing , nor even allege , that Roque had destroyed or deleted , or threatened to destroy or delete , any data or evidence , or that the requested forensic review was the least intrusive means available to obtain the information sought . The Court rejected Swezy ’ s position that the proposed forensic review should be permitted as a “ quicker and more efficient ” means of obtaining evidence . It analogized to Fourth Amendment cases rejecting police justifications for invading Fourth Amendment rights to make law enforcement more efficient and effective ( citing Mincey v . Arizona , 437 U . S . 385 , 393 ( 1978 ). The Court concluded the requesting party is required to show : 1 ) there was evidence of destruction or alteration of cell phone data ; 2 ) the device likely contained the requested information ; and 3 ) no less intrusive means existed to obtain the requested information . ( citing Holland v . Barfield , 35 So . 3d 953 , 955 ( Fla . 5th DCA 2010 ).
Many who litigate in personal injury have cases where cell phone records , such as location data , are
needed in prosecution or defense of the case . Does Roque mean you can ’ t get the data until there is actual evidence of data being destroyed ? No , but it does hold that you must start with less intrusive means , despite that it might not be efficient . Then , if there is some “ thwarting of discovery ,” or perhaps even inability to obtain the information by other means , the inspection can be compelled . n
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Interestingly , in noting the discovery order constituted an invasion of Roque ’ s privacy rights , the Court cited the recent Florida Supreme Court decision Planned Parenthood of SW and Central Fla . v . State , Nos . SC2022-1050 , SC2022- 1127 , 2024 WL1363525 ( Fla . April 1 , 2024 ) at * 8 n . 13 , and * 9 ( noting that historically , the right to privacy was “‘ directed to keeping personal information from being exposed to the public ,’” and concerns one ’ s “‘ freedom from official intrusion into my home , my person , my papers , my telephone ’”).
Author : Charles T . Moore – Morgan & Morgan
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