J. v. City and County of San Francisco

Background

The order concerns discovery—the process of obtaining information for use in litigation—from former plaintiff E.J.’s iPhone. E.J. had previously agreed to produce “any available location data” for July 8, 2023, from 4:00 p.m. to 8:40 p.m. The court had earlier ordered the parties to discuss production, potentially including a forensic review of the iPhone at the defendants’ expense.

E.J. produced location data connected to several photographs and videos taken during that period. The parties disputed whether that production was sufficient. The court found that the location data had at least some relevance and that forensic review might produce additional information, including data covering gaps of about 15 to 20 minutes. The court stated that additional data could help show whether E.J. followed police orders to disperse and could bear on whether other potential class members could have followed those orders.

Ruling

The court found that the potential relevance of the location data outweighed the burden of temporarily depriving E.J. of his iPhone. It also found that the privacy burden of providing the phone’s contents to a third party could be sufficiently reduced through the protections in the order.

The court ordered E.J. to do one of two things by December 4, 2024: notify the defendants that he would use their forensic vendor, or identify another vendor he had retained to extract the location data at the defendants’ expense. A different vendor had to be able to perform substantially the same inspection at no more than 40 percent above the defendants’ vendor’s estimate, unless E.J. agreed to pay the additional cost. The selected vendor had to agree to follow the order, and the retaining party had to file a declaration confirming that agreement by December 9, 2024.

E.J. had to submit his iPhone for inspection and imaging at a mutually agreeable time and place by December 13, 2024, and cooperate in providing access to geolocation data stored on the phone. After imaging, the vendor had to return the phone and provide counsel for all parties with geolocation data from 4:00 p.m. on July 8, 2023, through 2:00 a.m. on July 9, 2023, in a reasonably accessible format.

The vendor also had to provide E.J.’s counsel with a complete image of the iPhone for safekeeping during the litigation. The vendor could not otherwise disclose information from the phone without E.J.’s express agreement. After producing the location data, providing the image to counsel, receiving confirmation that counsel had received the data in an accessible format, and returning the phone, the vendor had to destroy remaining copies unless E.J. directed otherwise and the vendor agreed. E.J.’s counsel could not access, review, or disclose the image without E.J.’s express consent or a court order. At the end of the litigation or counsel’s representation, whichever came first, counsel had to transfer the image to E.J. and destroy remaining copies unless E.J. consented to another arrangement.

The parties also had to file a joint statement within three business days after production identifying what location data, if any, had been gathered. The court allowed the parties to modify the process by agreement, except for the requirement to submit a report to the court. It set a discovery status conference for December 17, 2024, and required a joint status statement by December 10, 2024.

Effect of the Order

This was a discovery and case-management order. It addressed the collection and protection of potentially relevant evidence and did not resolve the underlying claims, the anticipated class-certification motion, or the parties’ merits disputes. Judge Merry J. Cisneros stated that the location-data issue had become a distraction but ordered the limited forensic process to ensure that discovery relevant to settlement and class certification proceeded efficiently.