Alicia Pischke vs Santa Barbara County et al

Alicia Pischke v. Santa Barbara County, et al

Case No. 22CV01853

Hearing Date: May 3, 2024                                                     

HEARING:              Motion To Compel Production Of Text Messages

ATTORNEYS:        For Plaintiff Alicia Pischke: Stefon L. Jackson, Derek G. Thompson, Ferrone Law Group

                             For Defendants the County of Santa Barbara and JJ Zahry: Rachel Van Mullem, Teresa Martinez, Kristen Cortez, Office of the County Counsel

TENTATIVE RULING:

For all reasons discussed herein, the motion of defendant the County of Santa Barbara to compel the production of text messages is denied without prejudice.

Background: 

Plaintiff Alicia Pischke filed a complaint in this matter on May 13, 2022, alleging one cause of action for work environment harassment in violation of Government Code section 12940, subdivision (j)(1), against defendants Santa Barbara County, Santa Barbara Probation Department (collectively, the County), and JJ Zahry (Zahry) (collectively, defendants). As alleged in the complaint, Plaintiff has been employed with the County since 2004. Starting in early June 2021, plaintiff was required to interact regularly with Zahry, who was a newly hired Probation Manager and Director of Administrative Services for the County. From July 2021 through November 2021, Zahry engaged in conduct that included sending purportedly inappropriate text messages and screenshots to plaintiff, touching plaintiff and invading plaintiff’s physical space, inviting plaintiff to Zahry’s house, telling plaintiff that she looked “sexy”, and asking plaintiff to keep her phone on her in case Zahry missed her. On November 3, 2021, plaintiff reported to the County that she was being sexually assaulted, battered, and harassed by Zahry.

On August 19, 2022, defendants filed their answer to the complaint generally denying its allegations and asserting four affirmative defenses.

On February 28, 2024, the County filed a motion for an order under Code of Civil Procedure sections 2025.450 and 2025.480, to require plaintiff to provide text messages that plaintiff exchanged with Zahry by providing plaintiff’s accurate iCloud password to a digital forensic expert under the terms of an agreement between the parties dated November 1, 2023. The County also requests that the court impose monetary sanctions against plaintiff and her counsel in the amount of $2,431.60.

To support the present motion, the County submits the declaration of its counsel, Teresa M. Martinez (Martinez), who states that on July 21 and August 1, 2023, a deposition notice was sent to plaintiff’s attorney by, respectively, email and mail, setting plaintiff’s deposition for August 16, 2023. (Martinez Decl., ¶ 3 & Exhs. 1 & 2.) In the deposition notice, the County requested that plaintiff produce at the deposition all “text messages” exchanged between plaintiff and Zahry. (Id. at Exh. 1 [p. 2, ¶ 1].)

The term “text messages” is defined in the deposition notice to include “any electronic text or media exchanged between two or more users and includes, Short Message Service (“SMS”) messages sent over the cellular networks and messages sent over the Internet using applications, including but not limited to iMessage, WhatsApp, Facebook Messenger, Instagram Messenger, Twitter (via direct message), or Google Chat.” (Martinez Decl., Exh. 1 at p. 2, ¶ 1.) The County also specified in the deposition notice that the text messages must be produced “in a searchable format that preserves the presentational features of the original messages” and “in the same format as that in which they were exported for collection, search, or review purposes.” (Ibid.)

During the deposition, plaintiff stated that all of the text messages between plaintiff and Zahry were in an “iCloud” account (the iCloud account) connected to plaintiff’s iPad (the iPad) which plaintiff has not used since she left her employment with the County. (Martinez Decl., ¶ 7 & Exh. 3 [p. 10, ll. 13-23; p. 72, ll. 7-12 [also stating that plaintiff cannot retrieve messages from the iPad]; p. 73, ll. 16-18].) Plaintiff further stated that she did not have the password to the iCloud account and required assistance from Apple to recover it. (Id. at p. 73, ll. 24; p. 73, ll. 3-22.)

Following communications regarding plaintiff’s efforts to access and retrieve the text messages from the iCloud account, plaintiff produced “screenshots” of text messages with Zahry which the County contends did not comply with the format described in the deposition notice and failed to identify the sender or dates on which each message was sent. (Martinez Decl., ¶¶ 9-16 & Exhs. 4-10.) (Note: The court notes that its version of Exhibit 10 to the Martinez declaration includes what appear to be redacted or blank pages.) The County and plaintiff corresponded regarding plaintiff’s production of the screenshots. (Id. at ¶¶ 17-20 & Exhs. 11-14.)

The parties entered into an agreement under which plaintiff was required to send the iPad and login information for the iCloud account to AMR Forensics (AMR) no later than November 3, 2023, and to work with AMR to enable it to access the iCloud account. (Martinez Decl., ¶ 22 & Exh. 16 [Oct. 26, 2023, letter signed by plaintiff’s counsel on Nov. 1, 2023].) After the County granted extensions of the November 3, 2023, deadline provided in the parties’ agreement, plaintiff sent the iPad to AMR. (Id. at ¶¶ 23-26 & Exhs. 17-20.)

Though plaintiff provided AMR with login information for the iCloud account, which included alternative possible accounts and passwords, the passwords were incorrect. (Martinez Decl., ¶ 29.) AMR requested that plaintiff change the password for the iCloud account and provide the new password to AMR to enable it to perform a forensic extraction of the iCloud account. (Id. at ¶ 29 & Exh. 24.) On January 30, 2024, counsel for plaintiff stated that plaintiff was waiting for an access code to change the password which counsel stated could take up to 23 days to receive. (Id. at ¶ 31 & Exh. 25.) Martinez asserts that more than 23 days has elapsed and AMR has not received the updated password from plaintiff. (Id. at ¶ 32.)

In support of plaintiff’s opposition to the motion, plaintiff submits a declaration stating that she has been unable to recover the password for the iCloud account because with every attempt, plaintiff received a prompt which requested verification via an email address that plaintiff no longer has access to. (Pischke Decl., ¶ 3.) The recovery process also involves sending a text message to a phone number associated with the iCloud account which plaintiff states she has not maintained as her current phone number. (Ibid.)

Despite plaintiff’s efforts to provide the iPad to AMR together with a login and password, AMR was unable to access the iCloud account due to erroneous credentials. (Pischke Decl., ¶¶ 4-5.) After AMR requested that plaintiff modify the password for the iCloud account, plaintiff initiated the modification process but due to the unavailability of the previous phone number associated with the iCloud account, plaintiff required the involvement of Apple Tech Support who notified plaintiff of a projected timeframe of up to 23 days for receipt of a new password. (Id. at ¶ 7.)

On April 4, 2024, plaintiff succeeded in resetting the password and furnished AMR with the new login credentials. (Pischke Decl., ¶ 8.) On April 12, 2024, plaintiff was notified through her counsel that AMR necessitated plaintiff’s direct involvement to unlock the iPad by executing a 2-factor authentication. (Id. at ¶ 9.) Plaintiff asserts that a meeting with AMR is scheduled for April 25, 2024, in order to initiate the 2-factor authentication to access the iPad during which plaintiff will make every effort to grant AMR access to the information contained in the iPad. (Id. at ¶ 10.) Plaintiff states that she has “no further ability, knowledge, expertise or any other reasonable means to [obtain] [sic] the password.” (Id. at ¶ 12.)

To support its reply to plaintiff’s opposition to the present motion, the County submits the declaration of Alphonso Rivera who states he is the Chief Executive Officer of AMR. (Rivera Decl., ¶ 1.) Rivera states that during the April 25, 2024, Zoom meeting referenced in plaintiff’s declaration, which was attended by Rivera, plaintiff, plaintiff’s counsel, and counsel for the County, Rivera caused a numeric code to be sent to plaintiff via text message which plaintiff provided to Rivera. (Id. at ¶ 10.) During this meeting, Rivera was able to gain access to the iCloud account. (Id. at ¶ 11.) Rivera notified the parties that there were no text messages backed up into the iCloud account and the parties ended the Zoom meeting. (Id. at ¶ 12.)

Rivera also performed a full file review of the iPad using a “Cellebrite” extraction and concluded that there were no native text messages between plaintiff and the phone number for Zahry that existed on the iPad. (Rivera Decl., ¶ 13.) Rivera also determined that the backup message retention setting on the iPad is set to 365 days and that there were screenshots of text messages on the iPad which appear to have been taken on November 2 and 3, 2021. (Id. at ¶¶ 14 & 15.)

In addition, Rivera performed a database search in “Cellhawk” for the primary phone number plaintiff used to communicate with Zahry, which Rivera declares is the “gold standard” in location analysis used by state and federal law enforcement agencies across the country. (Rivera Decl., ¶ 16.) Rivera further declares that through “Cellhawk”, the phone database allows Rivera to confirm a phone number and the carrier in order to determine where to send a request for records during an investigation of a subject. (Ibid.) Based on the Cellhawk search performed by Rivera, Rivera declares that the primary number plaintiff used to communicate with Zahry appears active and in use, and is not the phone number for the iPad. (Id. at ¶¶ 17-18.) Rivera provides a screenshot of the results for the primary phone number used by plaintiff to communicate with Zahry, and states that he has not been provided with a device that is associated with that phone number. (Id. at ¶¶ 18-19.)

Analysis:

“If a deponent fails … to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc., § 2025.480, subd. (a).) The motion must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040, and notice of the motion must be given either orally at the deposition or by subsequent written service. (Code Civ. Proc., § 2025.480, subds. (b) & (c).)

The parties here do not appear to dispute that there exists good cause for the production of the text messages between plaintiff and Zahry described in the deposition notice, which the court notes are also identified in the complaint filed by plaintiff in this matter as “inappropriate”. (See Opp. at p. 3, ll. 9-28 [describing plaintiff’s agreement to permit forensic extraction of the iPad on which the text messages purportedly exist]; Compl., ¶¶ 10 & 20-23 [describing text messages and screenshots sent to plaintiff by Zahry].)

Available information demonstrates that, after the present motion was filed by the County, plaintiff provided the requested login credentials to AMR which enabled AMR to determine that no text messages were backed up into the iCloud account and that no native text messages between plaintiff and Zahry exist on the iPad as further discussed above. Therefore, based on the relief sought in the notice of the motion, the motion is moot. (See Cal. Rules of Court, rule 3.1110(a) & 3.1112(d)(3) [requiring a notice of a motion to state the nature of the order sought and the motion to state the relief sought].) In addition, available information appears to indicate that, to the extent any text messages between plaintiff and Zahry previously existed in either the iCloud account or the iPad, the text messages were lost or overwritten as a result of the retention settings on the iPad. (Rivera Reply Decl., ¶ 14; see Code Civ. Proc., § 2025.480, subd. (l)(1) [prohibiting the imposition of sanctions for a deponent’s failure to provide electronically stored information that has been “lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system”].)

Based on information and arguments offered in the County’s reply to plaintiff’s opposition, it is the court’s understanding that the County requests an order compelling plaintiff to produce text messages that the County believes may exist on a different device associated with the primary phone number used by plaintiff to communicate with Zahry. (See Rivera Reply Decl., ¶¶ 17-18.) This request is different from the relief described and sought in the notice and motion, which is limited to a request for an order compelling plaintiff to provide the password for the iCloud account to permit AMR to access the text messages described in the deposition notice. (See Notice at p. 1; Memo at p. 11, ll. 20-22.) 

“The purpose of the notice requirements ‘is to cause the moving party to “sufficiently define the issues for the information and attention of the adverse party and the court.” ’ [Citations.]” (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.) Therefore, “[a]s a general rule, the trial court may consider only the grounds stated in the notice of motion.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125 [also stating that a trial court is not required to consider grounds for relief not raised or sought by the moving party].) To the extent the County requests an order or relief different from or in addition to the order or relief stated in the notice of the present motion, and the motion itself, the motion is procedurally deficient. Moreover, there is no information to demonstrate that the County has met and conferred with plaintiff regarding any text messages that may exist on a different device as the County contends. (Code Civ. Proc., § 2025.480, subd. (b).)

If a responding party provides discovery requested in a motion and the moving party proceeds, the court has substantial discretion to determine how to rule on the motion based on the circumstances of the case. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.) In exercising that discretion, the court may take the motion off-calendar, deny the motion as moot, or narrow the scope of the motion to the issue of sanctions. (Id. at p. 409; see also Cal. Rules of Court, rule 3.1348(a).)

Because plaintiff has provided the information requested in the notice and the motion to AMR who performed the forensic extraction, the motion is moot. In addition, available information and evidence shows that any text messages that may have existed on the iPad or in the iCloud account were overwritten based on the retention settings of the iPad. Therefore, an award of sanctions under the circumstances present here is not appropriate. For these reasons, the court will deny the motion. The court’s denial herein is without prejudice to any future procedurally appropriate motion to compel the production of any text messages exchanged between plaintiff and Zahry that may exist on a different device or in a different account under plaintiff’s control provided the parties fully meet and confer in good faith.