Pearce v. Emmi
2:16-cv-11499
E.D. Mich.May 8, 2017Background
- Plaintiff Megan Pearce alleges defendant Michael Emmi viewed her breastfeeding via a Nest Cam after Fuhrman’s cell phone (paired to the Nest app) was seized by the Oakland County Sheriff’s Office (OCSO).
- Fuhrman’s phone was seized in a narcotics investigation; OCSO retained the phone as evidence and objected to a civil subpoena seeking forensic access.
- Magistrate Judge Majzoub granted Pearce’s motion to compel production for forensic examination by plaintiff’s expert, Mark St. Peter, subject to conditions (OCSO representative may attend but not interfere; St. Peter must copy phone memory and provide it to OCSO).
- Emmi and OCSO sought reconsideration on four points: (1) require St. Peter to note open apps before exam; (2) permit OCSO to remove the SIM card; (3) allow Emmi’s forensic expert to attend the exam; and (4) require immediate return of the phone after examination.
- The district court (Steeh, J.) granted reconsideration in part: ordered St. Peter to note open apps, allowed SIM removal, required a copy of the phone memory to be provided to OCSO (at OCSO expense), barred Emmi’s expert from attending, and required return of the phone after the exam. The court also cautioned that OCSO personnel may not view phone content without a valid Riley-compliant warrant or consent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May an OCSO representative view and note open apps on phone before exam? | Plaintiff did not object to noting open apps but warned against turning over information that could be used in criminal prosecution without a warrant. | OCSO seeks to have its representative view open apps to preserve chain of custody and identify running apps. | St. Peter must note open apps; OCSO rep may attend but may only view content if it has a Riley-compliant warrant or Fuhrman’s consent; otherwise viewing risks Fourth Amendment violation. |
| May OCSO remove the SIM card before the forensic exam? | No opposition from Plaintiff. | OCSO requested SIM removal to preserve evidence/chain of custody. | Allowed. |
| May Emmi’s forensic expert attend St. Peter’s exam? | Plaintiff argues exam and communications are protected by Rule 26(b)(4)(C) and work-product. | Emmi contends the exam yields objective data and his expert needs to observe procedures. | Denied. Rule 26(b)(4)(C) protects communications with testifying experts; defendant can obtain data and methods via expert report, disclosure, and deposition. |
| Must the phone be returned to OCSO immediately after exam? | Plaintiff did not oppose return. | OCSO requested return to maintain custody for criminal case. | Phone must be returned immediately after examination; St. Peter must provide a memory copy to OCSO at OCSO’s expense before further examination. |
Key Cases Cited
- Riley v. California, 134 S. Ct. 2473 (2014) (cell‑phone searches generally require a warrant)
- Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. 289 (W.D. Mich. 1995) (discusses protection of core attorney work product presented to experts)
- Stampley v. State Farm Fire & Cas. Co., [citation="23 F. App'x 467"] (6th Cir. 2001) (defines substantial-need/undue-hardship standard for discovery of trial-preparation materials)