School Can’t Inspect Student’s Phone, Laptop in Title IX Case

Sept. 20, 2018, 2:11 PM

A University of South Florida student who belatedly turned over evidence in a Title IX lawsuit doesn’t have to let the school inspect her personal computer and cell phone, a federal magistrate judge ruled.

Samantha Garrett’s privacy interests outweigh the potential benefits of a forensic examination, Magistrate Judge Amanda Arnold Sansone, of the U.S. District Court for the Middle District of Florida, said Sept 14.

The ruling shows that courts can be reluctant to order forensic examinations of personal digital devices, even when a party hasn’t fully complied with its discovery obligations.

The court found that Garrett’s failure to timely hand over potentially relevant evidence and her allegedly inconsistent deposition testimony didn’t create the exceptional circumstances necessary for a forensic examination.

Instead, the court allowed USF to reopen Garrett’s deposition and ordered her turn over text messages that she hadn’t produced.

Limited Re-Opening of Deposition

The Tampa, Florida-based university is fighting allegations that it violated Title IX of the Education Amendments of 1972. Garrett alleges that USF inadequately responded to her claims that fellow student Andrew Thurston sexually battered and raped her.

USF also unlawfully retaliated against Garrett for making Title IX complaints, she alleges. Garrett was charged with violating the school’s student conduct code after she recorded her conversation with USF’s senior deputy Title IX coordinator and another USF staff member.

USF argued that it needed a forensic examination of Garrett’s electronic devices because she gave conflicting testimony about whether she deleted the recording. At her first deposition, Garrett testified that she deleted the recording. At her continued deposition, she said the recording was still in her possession.

She clarified that, consistent with her testimony at the first deposition, she deleted the recording shortly after it was created. She later learned she could recover the recording from her iTunes account and provided it to her attorney.

Garrett’s counsel received the recording in preparing to file the lawsuit, but claimed the failure to produce it earlier was inadvertent. Ultimately, Garret handed over the recording on the last day of discovery.

Garrett’s counsel’s belated production of the recording is inexcusable, Sansone said. But USF hasn’t provided any evidence suggesting that the recording was altered or tampered.

USF can explore the recording’s authenticity through the re-opening of Garrett’s deposition, she said.

The court also said that a forensic examination of Garrett’s cell phone isn’t warranted just because she failed to turn over text messages.

During USF’s investigation, Thurston had provided the school with over 1400 text messages between him and Garrett. USF claimed that Garrett had defaulted on her discovery obligations by handing over only 337 messages.

“Although the USF Board found deficiencies in 337 text messages Ms. Garrett produced, like missing dates and times, Ms. Garrett’s production of the text messages between her and Mr. Thurston should settle the USF Board’s questions,” Sansone said. “The USF Board can also ask Ms. Garrett at her re-opened deposition about any inconsistencies between the text messages she must produce and text messages Mr. Thurston produced.”

Because USF prevailed on two out of its four discovery requests, the court awarded the school 50 percent of the fees incurred in bringing its discovery motion.

The case is Garrett v. Univ. of S. Fla. Bd. of Trs., 2018 BL 332903, M.D. Fla., No. 8:17-cv-2874-T-23AAS, 9/14/18.

To contact the reporter on this story: Michael Greene in Washington at mgreene@bloomberglaw.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bloomberglaw.com

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