The New Mexico Court of Appeals recently upheld a trial court that ordered production of a police officer’s personal cell phone records. Although the decision is very fact specific and the discovery order was
narrowly drafted, it provides some insight into where we’re headed with discovery of ESI.
State of New Mexico v Marty Ortiz (2009-NMCA-092, 8/13/09)
narrowly drafted, it provides some insight into where we’re headed with discovery of ESI.
State of New Mexico v Marty Ortiz (2009-NMCA-092, 8/13/09)
Marty Ortiz was arrested for DUI after an officer pulled him over. Ortiz asserted that the officer did not have reasonable suspicion to pull him over and sought evidence to support the claim by requesting all dispatch records, recordings and records of communications related to the stop. The court issued an order compelling discovery of the arresting officer’s personal cell phone records for six minutes time coinciding with sighting the defendant, pulling him over and making the arrest. The state refused to produce the records, arguing the records were not relevant and that they were the private communications of the officer. The court wasn’t persuaded and ordered production. Despite the order, the state did not produce the records and argued that they could not compel the officer to produce the records. The state moved for a writ of mandamus from the state’s supreme court. It was denied. The trial court granted the defendant’s motion to dismiss the charges with prejudice, citing the state’s failure to produce the requested evidence as "in bad faith and arguably intentionally preventing the trial from moving forward." The Court of Appeals upheld the trial court’s dismissal with prejudice. It’s reasoning is interesting and potentially far-reaching in its effect. The court reasoned that the
officer and whatever he used, did or said (basically) was property of the state because he was on duty at the time. His communications and records of his communications- whether they were over the police department owned and sanctioned communications system or his personal cell phone- were relevant and therefore, under the state’s rules, discoverable by the defendant.
officer and whatever he used, did or said (basically) was property of the state because he was on duty at the time. His communications and records of his communications- whether they were over the police department owned and sanctioned communications system or his personal cell phone- were relevant and therefore, under the state’s rules, discoverable by the defendant.
What does that mean? Maybe nothing. At least until it goes to the New Mexico Supreme Court and the issue comes up elsewhere. What to do in the meantime??? Well, smart attorneys request all the relevant communications and records anyway, and they follow up on it. Here, there were significant sanctions for
the prosecution’s non-compliance. That doesn’t happen a lot in criminal cases, and most places don’t have discovery in criminal cases. However, the defense can still request the records in criminal cases. In civil cases, there is no doubt that discovery includes the records if they’re relevant.
the prosecution’s non-compliance. That doesn’t happen a lot in criminal cases, and most places don’t have discovery in criminal cases. However, the defense can still request the records in criminal cases. In civil cases, there is no doubt that discovery includes the records if they’re relevant.
On the government and civil defense side, police departments and corporations have been telling people for years not to use their personal stuff while working. Does that stop them? Of course not. Has anybody stopped using their personal cell phone on the job? Has anyone stopped using their work cell phone for personal calls? Not until they’re forced to hand over their cell phones that have all sorts of inculpatory emails, contacts and call records that would probably get them disciplined at work or fired and/or divorced or at least in hot water at home. . . . and that could be in the offing fairly soon. . . .
