United States District Court, District of Columbia
MEMORANDUM OPINION & ORDER
D. BATES UNITED STATES DISTRICT JUDGE
Monique Williams has brought medical negligence claims
against Children's National Medical Center
(“CNMC”) and the United States of America
following the death of her teenaged son, H.W., from
complications of HIV and syphilis infections at CNMC in
October 2014. Under this Court's most recent discovery
order, the Court allowed discovery of textual and audiovisual
data-but not location data-from the decedent's locked
cell phone. Dec. 6, 2018, Order [ECF No. 41] at 3. That order
noted that defendants could move to expand discovery to
include location data if they could show that discovery of
location data met five criteria. Id. Defendants have
filed a motion seeking location data from H.W.'s cell
phone from August 27, 2014, through the date of H.W.'s
death. Mot. to Extend Search of Cellphone to Include Limited
Location Data (“Defs.' Mot.”) [ECF No. 42];
Defs.' Reply in Supp. of Defs.' Mot.
(“Defs.' Reply”) [ECF No. 45] at 6. Plaintiff
objects. Opp'n to Defs.' Mot. (“Pl.'s
Opp'n”) [ECF No. 44]. This issue has now been fully
briefed and is ripe for resolution.
scope of discovery generally includes that which “is
relevant to any party's claim or defense and proportional
to the needs of the case, considering the importance of,
” inter alia, “the parties' relative
access to relevant information, the parties' resources,
the importance of discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1).
It is the “duty and discretion of a trial court to
oversee the discovery process.” Seattle Times Co.
v. Rhinehart, 467 U.S. 20, 31 (1984). Rule 26 of the
Federal Rules of Civil Procedure “vests the trial judge
with broad discretion to tailor discovery narrowly.”
Crawford-El v. Britton, 523 U.S. 574, 598 (1998).
Pursuant to the December 6, 2018, discovery order, the Court
will consider the evidence the parties have presented on
whether location data “is (1) recoverable, (2)
relevant, (3) necessary, (4) accessible through reasonable
means with respect both to cost and to effort, and (5)
susceptible to reasonable limitations to mitigate the
significant privacy concerns triggered by discovery of such
data.” Dec. 6, 2018, Order at 3. Defendants have
persuasively argued that the location data is recoverable,
accessible through reasonable means, and relevant, but not
that this data is necessary or that limitations exist that
would mitigate the Court's privacy concerns. For the
reasons that follow, the Court concludes that, considered
together, the factors weigh against granting the discovery
request, and, hence, the motion will be denied.
Court concludes that CNMC has demonstrated a good faith
belief that the location data is recoverable. Plaintiff
argues that CNMC's data recovery specialist has not yet
unlocked or “cracked” the phone, and therefore no
one can be certain that the location data exists or is
recoverable. Pl.'s Opp'n at 3-5. However, the data
recovery company asserts that it has the technological
“ability to extract location data that may be contained
in application on the phone based on the user
settings.” Sept. 10, 2018, Letter from KLDiscovery, Ex.
4 to Pl.'s Opp'n [ECF No. 44-4]. The Court is
satisfied that, to the extent such location data exists, CNMC
has identified a company with the technological capability to
access this material, and thus there is reason to believe
that such data is recoverable.
CNMC has demonstrated that the location data is accessible
through reasonable means with respect both to cost and to
effort. CNMC notes that the same data recovery process that
will be applied to recover textual and audiovisual data could
recover location data, with an additional effort of 3 to 6
hours of technician time and at a cost of approximately $1,
125 to $2, 250. Defs.' Mot. at 3. Defendants would
“pay any and all costs associated with extrapolating
the location data.” Id. Plaintiff notes that
the 3-to-6-hour estimate does not account for attorney time
that will be spent reviewing any recovered location data.
Pl's. Opp'n at 12. The Court concludes that 3 to 6 hours
of time is reasonable, that direct discovery costs would not
unfairly fall on plaintiff, and that the additional time
expended reviewing such data does not render CNMC's
Court also agrees with CNMC that the location data is
relevant. “To be relevant, evidence must have the
tendency to make ‘the existence of [a fact] . . . more
probable or less probable than it would be without the
evidence.'” United States v. Moore, 732
F.2d 983, 994 (D.C. Cir. 1984) (quoting Fed.R.Evid. 401).
CNMC asserts contributory negligence as a defense in this
medical malpractice case, and CNMC argues that location data
from H.W.'s phone from late August 2014-the time that he
was likely infected with HIV-until his death in October 2014
could reveal how H.W. contracted HIV; provide further
evidence of H.W.'s condition in the weeks leading up to
his death, including whether he felt well enough to leave his
home; or demonstrate that H.W. sought additional testing for
sexually transmitted diseases (“STDs”).
Defs.' Mot. at 2; Defs.' Reply at 5. Plaintiff avers
that her claims are based on what defendants “actually
knew as documented in their medical records, ” and thus
location data collected after the fact “will not
support a defense to these claims.” Pl.'s Opp'n
Court concludes that CNMC has shown that location data
could shed light on H.W.'s condition in the
weeks leading up to his death or lead to evidence that H.W.
had more information about his condition than he shared with
providers. Location data would not change the mix of facts
that H.W.'s medical providers knew at the time they
treated him, but this data might provide additional
information on the decedent's knowledge of his condition,
which in turn would make CNMC's defense of contributory
negligence more or less probable. Hence, location data is
relevant to the claims and defenses in this case.
arguments that the location data is necessary are less
persuasive. Defendants argue that location data “is
necessary . . . for the same reason[s] as all of the other
information on the phone” and that “location data
may either establish independently or corroborate other data
on the phone” that would tend to show H.W.'s
contributory negligence. Defs.' Reply at 5-6. Defendants
suggest that location data will be probative of three main
issues: (1) determining where and how (by sexual contact,
drug use, etc.) H.W. contracted HIV, (2) determining whether
H.W.'s illness kept him at home on the days he missed
school and was not at the hospital, and (3) whether H.W.
sought out other treatment or testing that would have caused
him to have more information about his HIV status than he
reported to CNMC staff. As to each of these issues, the Court
finds that location data either would simply be cumulative,
could be obtained from other sources, or would not be
proportional to the needs of the case. See
Fed.R.Civ.P. 26(b)(1), (b)(2)(C)(i).
the first issue, defendants argue that location data is
necessary because “there is no other means of obtaining
. . . relevant information” about H.W.'s last
months of life because deposed family members and friends
“have denied any knowledge of H.W.'s sexual
orientation, practice, partners and almost all of his
personal life.” Defs.' Mot. at 2-3. Defendants will
have access to textual and audiovisual materials recovered
from the cell phone, evidence that will address
defendants' questions about H.W.'s personal life in
the months before his death in a more direct manner than what
cell tower data would provide. Because cell tower location
data would not reveal, in itself, what H.W. was doing in the
areas he visited over a four-month period, this data is less
probative than other materials that the phone is likely to
contain and seems likely only to corroborate other
information collected from the phone. And plaintiff notes
that other records show that H.W. “reported having sex
with males” to health providers at a clinic at his high
school and that he asked these providers “for STD
testing.” Pl.'s Opp'n at 5. Hence, location
data is not necessary to develop these facts.
the issue of H.W.'s physical condition in the weeks
before his death, location data has little probative value in
relation to evidence already available to defendants.
Plaintiff urges that location data is “cumulative and
duplicative” of other evidence, particularly since
other records make clear that H.W. left home at least seven
times in the two weeks preceding his death, including five
visits to the emergency room, one visit to his mother's
house, and one day that he attended school. Pl.'s
Opp'n at 5, 11. Deposed eyewitnesses and hospital records
describe his physical appearance during this time. Showing
that the cell phone did or did not leave H.W.'s house
over these weeks adds little if anything to these more
substantive sources of evidence.
defendants seek location data to test whether H.W.
“visited other medical locations, including those in
Prince George's County, Maryland, and received additional
testing for STDs, showing that HW had some knowledge of his
exposure to HIV that he denied to” his medical
providers. Defs.' Reply at 5. However, defendants are
already aware that H.W. sought testing for STDs in the weeks
before his death. According to plaintiff's complaint,
H.W. was tested for HIV during a May 2014 visit to the CNMC
emergency room. Compl. [ECF No. 1-1] ¶ 33. H.W. then
tested negative for HIV, gonorrhea, and chlamydia at a visit
to a clinic at his high school on September 10, 2014.
Id. ¶¶ 34-36. H.W. returned to that same
clinic nine days later, on September 19, complaining of a
headache, then appeared in the CNMC emergency room five times
in the days that followed-on September 21, 23, 29, 30, and
October 3. Id. ¶¶ 37-39, 42-43, 49-50, 56-
57, 63-64. H.W. died on October 5, 2014-less than a month
after he last tested negative for HIV. Id. ¶
88. H.W. sought medical care from two provider locations, and
he willingly submitted to HIV testing at both locations.
Defendants have provided no reason to believe that H.W.
received additional STD testing at other, unfamiliar
locations while also repeatedly seeking care at the two
facilities already known to defendants. Instead, what
defendants seek is essentially a “fishing
expedition.” United States v. Kellogg Brown &
Root Servs., Inc., 284 F.R.D. 22, 36-37 (D.D.C. 2012).
Without more context, the Court has no reason to believe that
location data is likely to lead to evidence of additional
testing or that location data would otherwise be particularly
probative of the issues presented. Moreover, to the extent
that defendants believe records of additional testing exist,
defendants do not require location data because they may seek
these records through subpoenas duces tecum from any
providers they believe might have these records. Hence,
location data is not necessary to develop any facts or
support any claim or defense in this case.
Court also continues to be troubled by “the significant
privacy concerns triggered by discovery of such data, ”
particularly in light of its minimal probative value.
See Dec. 6, 2018, Order at 3. Rule 26(b)(1) provides
that discovery should only be permitted to the extent that
the likely benefit of such discovery outweighs its burden.
Here, any minimal value defendants might derive from the
location data does not outweigh the risks inherent in
disclosure, and the Court's privacy concerns remain
explain that location data is desirable, in part, because it
“will at least put [H.W.] in certain locations, ”
[t]he defense can then investigate those locations, who
frequents them, [and] what happens there, in an effort to
determine how/when/from whom HW contracted HIV. To the extent
any sexual activity and/or drug use occurred, that is
incredibl[y] helpful to the defense ...