Opinion
C. A. NC-2019-0433
07-08-2022
RICHARD P. BRUNO, Jr., individually, as statutory beneficiary of Nathan R. Bruno, and as Administrator of the Estate of Nathan R. Bruno; MISTY L. KOLBECK, individually and as statutory beneficiary of Nathan R. Bruno, Plaintiffs, v. LISA MILLS, in her capacity as Finance Director for the TOWN OF PORTSMOUTH; RYAN MONIZ; STEPHEN TREZVANT; JOSEPH AMARAL; PAIGE KIRWIN-CLAIR; MADDIE PIRRI; CHRISTINA D. COLLINS, in her capacity as Finance Director for the TOWN OF JAMESTOWN; and DEREK CARLINO, Defendants.
For Plaintiffs: Peter J. Cerilli, Esq.; John S. Foley, Esq. For Defendants: Marc DeSisto, Esq.; Caroline Murphy, Esq.; Melody A. Alger, Esq.
For Plaintiffs: Peter J. Cerilli, Esq.; John S. Foley, Esq.
For Defendants: Marc DeSisto, Esq.; Caroline Murphy, Esq.; Melody A. Alger, Esq.
DECISION
LICHT, J.
I
Facts &Travel
Between December of 2017 and January of 2018, Defendant Ryan Moniz (Moniz), who was the Portsmouth High School football coach, received several harassing calls and text messages from an anonymous phone number. Moniz reported the matter to the Jamestown Police Department who, in turn, subpoenaed Cox Communication (Cox) to trace the source of the offending calls and messages. On February 1, 2018, Cox responded to the subpoena, and confirmed that the harassing messages and calls originated from the cell phone of Nathan R. Bruno (Nathan), a sixteen-year-old sophomore at Portsmouth High School and member of the football team. That same day, Jamestown Police Detective and co-Defendant, Derek Carlino (Detective Carlino) shared the information he had received from Cox with Moniz and contacted Nathan's father, Richard P. Bruno, Jr. (Richard).
We refer to each member of the Bruno family by their first name for clarity. We mean no disrespect.
On February 2, 2018, Nathan and Richard appeared at the Jamestown Police Department for an interview, where Nathan admitted to making the offending calls and texts to Moniz. Nathan was immediately charged with cyberstalking and cyber harassment. During this interview, Nathan also indicated that there were two (2) other Portsmouth students involved in the cellular harassment of Moniz. However, Nathan did not divulge the names of the two students except to say that they were also members of the Portsmouth football team.
February 6, 2018 saw several escalating-though unsuccessful-attempts to get Nathan to reveal the names of the two other Portsmouth High School football players supposedly connected with the calls and messages. These attempts included: (i) a morning meeting between Nathan and the Portsmouth High School Principal, Defendant Joseph Amaral (Principal Amaral), as well as the Portsmouth Athletic Director, Defendant Stephen Trezvant (Trezvant); (ii) an afternoon appearance by three (3) members of the football team at the Bruno residence, with Richard present, in an attempt to persuade the younger Bruno into revealing the names; and (iii) a late night argument between Richard and his son concerning the latter's refusal to divulge either coconspirator. During this time, Richard had been emailing back and forth with Moniz regarding having Nathan apologize, an option which Moniz rejected unless the apology came paired with the names of the other students. (See Am. Compl. ¶ 14).
This followed a meeting of the entire Portsmouth football team earlier that day, where Moniz supposedly threatened to resign his position as coach should he not be able to discover the names of the other involved students. (See Am. Compl. ¶ 14).
The next day, Nathan committed suicide. (See id.) In their Amended Complaint, Plaintiffs allege that affiliated school personnel of Portsmouth High School neglected their responsibility to communicate with Nathan's parents regarding the Jamestown Police investigation and, further, negligently engaged in a campaign to pressure Nathan to reveal the two other alleged participants. (See id., Count I - Negligence). Additionally, Plaintiffs allege that Detective Carlino-and the Town of Jamestown by extension (the Jamestown Defendants)-failed to follow appropriate policing protocol with respect to the investigation of Nathan and, moreover, that Detective Carlino negligently and improperly shared confidential details of the investigation with Moniz and others while withholding the information from Nathan's parents. (See id., Count II - Negligence).
In addition to Moniz, Principal Amaral, and Trezvant, Count I of the Amended Complaint also names Assistant Principal and Interim Principal of Portsmouth High School, Paige Kirwin-Clair (Kirwin-Clair), and Portsmouth School Resource Officer, Maddie Pirri (Pirri), as co-defendants (collectively, the Portsmouth Defendants).
II
Arguments
A
General
The discovery process for this lawsuit began in earnest in January of 2020. As part of the Portsmouth Defendants' First Request for Production of Documents, Defendants specifically requested the production of Nathan's cell phone for forensic review on January 17, 2020. Plaintiffs objected to this request, leading Defendants to file the instant Motion to Strike Plaintiffs' objection and compel production of the cell phone on March 4, 2022. Following additional motion practice, the Court held a hearing on Defendants' Motion on June 6, 2022.
B
The Parties' Arguments
Defendants seek a forensic copy of all information contained on Nathan's cell phone from September 1, 2012 (i.e., when he was nine years old) up to the date of his death on February 7, 2018. Underlying Defendants' request is the prerogative of their expert, Wade Cooper Myers III, M.D., to conduct a post-mortem "psychological autopsy" of the decedent. (See Defs.' Ex. B, Dr. Wade Myers' Curriculum Vitae). The psychological autopsy is a method which has some sanction in federal and Massachusetts case law and enables a trained expert to "reconstruct [a decedent's] psychological life, thoughts, feelings and relevant environmental factors in the weeks preceding [their] death." Routhier v. Keenan, No. 04-1359, 2008 WL 5146918, at *5 (Mass. Super. Nov. 12, 2008). By collecting and analyzing all relevant information on the deceased (inclusive of the "decedent's writings in the form of diaries, journals, e-mails, and internet correspondence") the expert can then "rule in" or "rule out" various causal factors to opine on which causes proximately impacted the decedent's decision to take their own life. Smith v. Pfizer (In re Neurontin Mktg.), 2009 U.S. Dist. LEXIS 118006, *73-74 (D. Mass. Aug. 14, 2009). See, e.g., Almonte v. Kurl, 46 A.3d 1, 19 (R.I. 2012) (reaffirming the necessity of experts on suicide in those cases which involve "assess[ing] whether particular circumstances contributed to an individual's self-inflicted death[.]").
At hearing, there was some confusion regarding the "start date" from which Defendants were seeking information from Nathan's cell phone. Defendants' Memoranda gave the impression that January 1, 2016 began the applicable time frame: "In particular, Nathan Bruno's behavior and communications between January 1, 2016 and February 7, 2018 are particularly relevant, or likely to give rise to admissible evidence." (Defs.' Mot. at 13) (emphasis added). However, at hearing, counsel for Defendants insisted that their start date had always been September 1, 2012, despite that date not appearing in either Defendants' initial Memorandum or Reply Memorandum.
James L. Knoll, IV, MD, The Psychological Autopsy, Part I: Applications and Methods, J. OF PSYCHIATRIC PRACTICE Vol. 14, No. 6 at 395 (Nov. 2008).
Defendants argue that where, as here, Plaintiffs have made Nathan's state of mind leading up to February 7, 2018 the central issue of this lawsuit, they have ultimately "open[ed] the door to exploration as to the sources of the decedent's distress and life stressors." (Defs.' Mot at 11). Therefore, all the sources of Nathan's distress and life stressors are relevant, discoverable, and should be made available to Dr. Myers in the composition of his psychological autopsy.
Not surprisingly, Plaintiffs characterize the scope of time and topics Defendants say they are entitled to on Nathan's phone as an indiscriminate fishing expedition. (See Pls.' Opp'n at 5) ("It is clear from the unlimited breadth of what defendants claim they are looking for on Nathan's phone . . . that there is nothing specific that they seek."). More conclusive, however, Plaintiffs point to two (2) Constitutional reasons why Defendants' motion to compel the wholesale forensic imaging of Nathan's cell phone must fail. First, Defendants' unqualified request ignores the recognized privacy interest accorded to cell phones by the United States Supreme Court. See Riley v. California, 573 U.S. 373, 403 (2014). Second, the exhaustive list of topics Defendants aver might be found on Nathan's phone fails to meet the "relevancy" and "proportionality" factors that courts are instructed to consider when faced with a motion to compel forensic inspection:
"Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans 'the privacies of life.'" Id. (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)).
See Defs.' Mot. at 13-14 ("[Nathan's phone] would likely contain responsive communications and materials which would speak to Nathan['s] . . . state of mind and his mental health. It may contain an actual, or the functional equivalent of, a suicide note.... It would likely contain communications which would speak to the relationship between Nathan . . . and his father, Richard Bruno.")
"When determining whether to grant a motion to compel the forensic imaging of a cell phone . . ., courts have considered whether the examination will [(1)] reveal information that is relevant to the
claims or defenses in the pending matter and [(2)] whether such an examination is proportional to the needs of the case given the cell phone owner's compelling privacy interest in the contents of his . . . cell phone[.]" Hardy v. UPS Ground Freight, Inc., Civil Action No. 3:17-cv-30162-MGM, 2019 WL 3290346, at *2 (D. Mass. 2019) (internal citations omitted) (emphasis added).
Finally, Plaintiffs note that as this case involves a limited cast of characters interacting with one another during a limited span of time (i.e., December of 2017 through February 8, 2018), there is no legal defense to be had by pointing to Nathan's pre-existing "problems" and "stressors" dating back to the time he was nine. Rather, Rhode Island law requires Defendants take the victim of their negligence as they "find him." See Lebon v. B.L. &M. Bottling Company, Inc., 114 R.I. 750, 754, 339 A.2d 272, 274 (1975) ("[I]t is well settled that a defendant in a personal injury accident takes his victim as he finds him and cannot defend on the ground that his actions only aggravated an earlier condition or that the plaintiff was weak, decrepit, or among those unusually susceptible to the injury sustained.").
III
Standard of Review
Rule 37 of the Rhode Island Superior Court Rules of Civil Procedure governs motions to compel. In relevant part, "if a party, in response to a request for production or inspection submitted under Rule 34, fails to respond . . . the discovering party may move for an order compelling an answer, or a designation, or an order compelling production or inspection in accordance with the request." Super. R. Civ. P. 37(a)(2). The burden is upon the party seeking the discovery to show that the "denial of production or inspection will result in an injustice or undue hardship." Jordan v. Stop & Shop Companies, Inc., 558 A.2d 957, 958 (R.I. 1989) (internal citations omitted). Further, "[t]he determination of this issue is vested in the sound discretion of the trial justice, who should look at the facts and circumstances of each case in arriving at an ultimate conclusion." Id.
IV
Analysis
A
Relevancy - General
There is a lacuna of Rhode Island case law addressing compelled forensic imaging of cell phones in a civil suit. As such, this Court looks to federal case law for guidance.
In determining whether to grant a motion to compel the forensic copy of cell phone information, federal courts have traditionally considered "whether the examination will reveal information that is [(1)] relevant to the claims and defenses in the pending matter and [(2)] whether such an examination is proportional to the needs of the case given the cell phone owner's compelling privacy interest in the contents of his or her cell phone." Hardy, 2019 WL 3290346, at *2 (emphasis added). As Rhode Island's provisions governing discovery lack the "proportionality" requirement of their federal counterpart, this Court will concentrate its inquiry primarily on the "relevancy" prong. Compare Super. R. Civ. P. 26(b)(1) with Fed.R.Civ.P. 26.
Other than the arbitrary start date of September 1, 2012, the forensic examination that Defendants seek "is not limited in any way," whether by "search term . . . or identity of the sender or receiver." Ramos v. Hopele of Fort Lauderdale, LLC, CASE NO. 17-62100-CIV-MORENO/SELTZER, 2018 WL 1383188, at *1 (S.D. Fla. Mar. 19, 2018). Therefore, Defendants' request to examine the contents of Nathan's entire cell phone necessarily "threatens to sweep in documents and information that are not [remotely] relevant to the issues in this case, such as the plaintiff's private[,] [unrelated] text messages, emails, contact lists, and photographs." Henson v. Turn, Inc., Case No. 15-cv-01497-JSW (LB), 2018 WL 5281629, at *5 (N.D. Cal. Oct. 22, 2018).
For the purposes of argument, the Court momentarily accepts the methodological validity of the "psychological autopsy" for sorting out the causal factors leading to a suicide. The Court further accepts Defendants' representation that "the greater the amount of relevant data" available to Defendants' psychiatric expert in conducting Nathan's psychological autopsy, "the more accurate [Dr. Myers'] conclusions are likely to be." Defs.' Reply at 4; see also Defs.' Ex. C, Letter by Dr. Wade Myers, dated May 9, 2022. However, the Court must weigh Dr. Myers' need for raw information against the extent to which federal courts have "been wary [of] grant[ing] a motion to compel forensic imaging in response to a request for information that has not been shown to be at the heart of a claim or defense in the ongoing litigation[]" given the sensitive nature of the contents of personal cell phones. Hardy, 2019 WL 3290346, at *3.
See, e.g., Blanchard v. Eli Lilly & Co., 207 F.Supp.2d 308, 313 n.2 (D. Vt. 2002); Cloud v. Pfizer, Inc., 198 F.Supp.2d 1118, 1135 (D. Ariz. 2001); Herrin v. Treon, 459 F.Supp.2d 525, 545 (N.D. Tex. 2006).
See, e.g., John B. v. Goetz, 531 F.3d 448, 459-60 (6th Cir. 2008), abrogated on other grounds by Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016), (given the privacy and confidentiality concerns, "[c]ourts have been cautious in requiring the mirror imaging of computers where the request is extremely broad in nature and the connection between the computers and the claims in the lawsuit are unduly vague or unsubstantiated in nature.") (alteration in original) (internal quotations omitted).
As such, a wide net dragged across the entirety of Nathan's cell phone without parameters cannot be said to be targeted "at the heart of a claim or defense" in the present litigation. Id. This is particularly the case when Defendants have not tried to pare down the information sought to reach a stipulated protocol with Plaintiffs. See, e.g., Henson, 2018 WL 5281629, at *5 (denying motion to compel plaintiffs to produce their cell phone for forensic imaging where, even if some data on the cell phones could be relevant, the overbroad request would sweep in "documents and information that are not relevant to the issues in [the] case"). As an example of compromise, Defendants could have proposed to limit their assay of Nathan's cell phone to certain communication- and social media-based apps or, in the alternative, Nathan's communications with designated individuals. Regardless of the search parameters that could have been agreed on before resorting to judicial intervention, existing case law instructs that there must be some safeguards against extraneous cell phone material finding its way into Defendants' hands (and, by extension, Dr. Myers' psychological autopsy). See B. Goetz, 531 F.3d at 459-60; Henson, 2018 WL 5281629, at *5; Ramos, 2018 WL 1383188, at *1.
B
Relevancy - Specific Information Sought
Leaving aside the drastic nature of demanding the wholesale image of Decedent's cell phone, Defendants have failed to establish a likelihood that Nathan used his cell phone in a way that bridges his "sources of distress" and/or "life stressors" to any indicia of suicidal ideation.
For example, in arguing that Nathan's cell phone should be produced for forensic review, Defendants highlight that, "[a]s evidenced by some of the thousands of pages of emails, chats and texts [already] produced by the Portsmouth defendants, Nathan Bruno communicated often with his friends, family and teachers." Defs.' Mot. at 13. The fact that Nathan "communicated often" with those in his immediate social circle does not, without more, establish that he used his cell phone to facilitate private discussion regarding his "sources of distress" and/or "life stressors," much less that information on his phone would reveal the sufficient conditions which drove him to suicide. See Ramos, 2018 WL 1383188, at *2 (denying defendant's motion to compel forensic imaging where the existence of text messages was undisputed, but the relevance of the content of the messages was not sufficiently established).
I.e., not public facing and/or available to both parties on social media.
Moreover, Plaintiffs aver that Nathan was not even in possession of his phone from the time he confessed to sending the messages to Moniz through the day of his death. (See Pls.' Obj. at 3). Rather, Plaintiffs claimed at hearing that Richard had "t[aken] it from him" on February 2nd. Defendants do not challenge this assertion, nor do they offer a guess as to how that assertion could affect the accuracy of Dr. Myers' "psychological autopsy" into the proximate causes of Nathan's suicide.
To clarify, even if the stress of being pressured to reveal his co-pranksters was the absolute and proximate cause of Nathan's suicide, his phone, if unavailable to him during this seven-day window, would reveal none of that turmoil. Rather, it may lead Dr. Myers to place unwarranted weight on alternate-but unrelated-life "stressors" contained in older portions of the phone's data.
It is undisputed that Nathan Bruno, a teenager, used his cell phone to communicate with those in his social circle. It is also undisputed that Nathan faced certain right-of-passage "stressors" in common with most American teenagers-such as marijuana use, dissociation with formal education, vandalism, and so forth. Taken together, however, Defendants have failed to establish that the circumstances surrounding the phone warrant a "compelled wholesale imaging of the entire contents of Plaintiff's cell phone" because, absent a more specific showing, Defendants "ha[ve] not met [their] burden of demonstrating the relevance of the contents of the forensic image" they seek. Hardy, 2019 WL 3290346, at *3 (emphasis added). Instead, Defendants stroll on for pages with topics that they believe are relevant to their alternative causation defense and assert, without a trace of substantiation, that said topics "will likely" be found in the phone's data cache. See Defs.' Mot. at 13-16. Possibility, however, does not equate to probability.
The Court generally agrees with Plaintiffs' concern that broad, unfettered access to Nathan's cell phone by Defendants' expert entails a risk of (1) conflation of proximate causes, as well as potential (2) confusion of the issues which may implicate our State's "eggshell skull" doctrine. See Pls.' Opp'n at 3 (quoting Lebon v. B.L.& M. Bottling Company, Inc., 339 A.2d at 274 (it is well settled in Rhode Island '"that a defendant in a personal injury accident takes his victim as he finds him and cannot defend on the ground that his actions only aggravated an earlier condition or that the plaintiff was weak, decrepit, or among those unusually susceptible to the injury sustained.'")). This is particularly the case considering Defendants engaged in their alleged tortious acts just a few days prior to the ultimate "harm," whereas the timespan implicated by a full forensic analysis of Nathan's cell phone spans years.
See also JURY INSTRUCTIONS, Chrabaszcz v. Johnston School Committee, C. A. No. 03-133S, at *24 (D.R.I. Jan. 12, 2007), https://www.rid.uscourts.gov/sites/rid/files/juryinstructions/civil/03-r33S%20Chrabaszcz%20v.%20Johnston%20School%20Committee.pdf.
Finally, the Court distinguishes the instant matter from the trio of cases cited by Defendants in which three different courts grant motions to compel extensive electronic discovery in cases involving suicide. See Defs.' Mot. at 11-12. First, Progressive Casualty Insurance Co. v. Mahan granted movant's motion to compel discovery of privileged medical records in order to establish whether the decedent had ever been clinically diagnosed with depression, not whether the decedent was actually depressed at the time of her suicide. No. B-10-46, 2011 U.S. Dist. LEXIS 5248, at *6-7 (S.D. Tex. Jan 20, 2011). Second, while the court in Kwasniewski v. Sanofi-Aventis U.S., LLC did allow decedent's cell phone to be turned over for forensic review ("The Court finds that the discovery that Defendant seeks is clearly relevant to the issues presented, specifically the decedent's state of mind before his suicide, and any factors that contributed to his suicide"), the timespan of "relevancy" was far easier to determine-and, thus, limit-in that case than the timeline in the instant matter (i.e., from the time the decedent in Kwasniewski started taking prescription Ambien until the date of his suicide). Case No. 2:12-cv-00515-GMN-NJK, 2017 U.S. Dist. LEXIS 30328, at *3 (D. Nev. Mar. 3, 2017). Lastly, Murphy v. Metrikin stands for the opposite proposition than Defendants' current argument. In Murphy, the court rejected defendant's demand to forensically analyze the cell phone of the decedent's wife, calling the request "overbroad and unduly burdensome" even though (i) the time-period of data sought was for less than a year (~10 months), and (ii) expressly limited to the wife's communications concerning her deceased husband. No. 805387/18, 2019 N.Y. Misc. LEXIS 5569, at *14,15 (N.Y. Sup. Ct. Oct. 16, 2019) ("These demands [for plaintiff's cell phone] are stricken as overbroad and unduly burdensome. Any forensic analysis should be limited to searches related to the topics discussed during [decedent husband's] sessions and relevant to Dr. Metrikin's defense. The demand also must be tailored to account for 'sensitive or embarrassing materials of marginal relevance'".) (citing to Forman v. Henkin, 30 N.Y.3d 656, 665 (N.Y. 2018)).
Taken together, these cases do not stand for Defendants' assertion that "all of the sources" of the decedent's "distress[] and life stressors[] are relevant and discoverable" in a negligence claim involving suicide. (Defs.' Mot. at 11).
C
Privacy Considerations - a Less Intrusive Protocol
Defendants have failed to show that a less intrusive option would not yield information from Nathan's cell phone relating to his state of mind leading up to his suicide. See Tingle v. Hebert, Civil Action NO. 15-626-JWD-EWD, 2018 WL 1726667, at *7 (M.D. La. Apr. 10, 2018) (defendants required to demonstrate that they first attempted to obtain plaintiff's cell phone information by less intrusive means before they could gain access to his cell phone). Specifically, Defendants have not shown that they have sought "straightforward production" as a "less intrusive alternative" to the rather drastic step of taking a complete forensic image of the phone. Hardy, 2019 WL 3290346, at *4. Nor have Defendants argued that the data on the cell phone is somehow compromised or, absent a full forensic copy, in danger of being lost. See Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645, 652 (D. Minn. 2002) (allowing access to defendants' computer hard drive to facilitate retrieval of deleted data where defendant's expert attested to the possibility that data could be recovered and that further delay risked irreversible loss of relevant data).
Additionally, Defendants have failed to offer a protocol that would limit their access to private and/or unrelated content on Nathan's cell phone-or any protocol at all, for that matter. See In re: Ford Motor Co., 345 F.3d 1315, 1317 (11th Cir. 2003) (reversing the district court's order granting the plaintiff access to the defendant's electronic databases; noting that establishing a protocol, including designating search terms, is necessary to restrict a search of a party's electronically stored information). Indeed, it is Defendants' lack of any proposed search protocol or parameters that gives this Court the most pause. The forensic search sought by Defendants, as presently proposed, risks turning every bit of data on Nathan's cell phone into a Rorschach test for their retained forensic psychiatrist. Moreover, it risks doing so no matter how dated or tangentially relevant that information may be to Nathan's "life stressors" or suicidal ideation.
While "our discovery rules are liberal and have been construed to 'promote broad discovery'" (DeCurtis v. Visconti, Boren &Campbell, Ltd., 152 A.3d 413, 421 (R.I. 2017) (citing Henderson v. Newport County Regional Young Men's Christian Association, 966 A.2d 1242, 1246 (R.I. 2009)),"broad discovery" cannot extend to a shotgun approach, in which every bit of information on a teen's cell phone-no matter how dated, attenuated, or ironic-is fair game for a psychological recreation of that teen's state of mind in the days and weeks leading up to their final act. Rather, contemporary case law demands that privacy and relevancy considerations must be respected, and further winnowing of the allowable cell phone data be attempted by the parties prior to a court-ordered forensic imaging-traditionally a discovery tool of last resort.
At hearing, those present of a certain age were quick to share stories of how their teenage children often glibly remarked that they "could kill themselves" in reaction to instances of boredom, embarrassment, etc.
V
Conclusion
For the foregoing reasons, the Court denies Defendants' Joint Motion to Strike Objections and Compel Supplemental Response to Portsmouth Defendants' First Request for Production of Documents Addressed to Plaintiffs. However, the Court will allow Defendants access to Nathan's cell phone data for the thirty (30) days prior to his first call or text to Moniz until the date of his death. The parties shall meet and confer to devise a protocol to ensure that privileged materials or "sensitive or embarrassing materials of marginal relevance" are not produced except for in camera review by the Court. If counsel cannot agree on a protocol within thirty (30) days, they will submit their respective proposals in a redlined document highlighting the disagreements and the Court will establish the protocol. Counsel shall prepare and present an appropriate order.