Are Student Cell Phone Records Discoverable?

The debate over when officials can search a student's cell phone is an emerging e-discovery issue. This is illustrated in the recent case N.N. v. Tunkhannock Area School District, Civil Action No. 3:10-CV-1080, U.S. District Court for the Middle District of Pennsylvania.

In this case, a student at Tunkhannock Area High School in Tunkhannock, Pa., violated a school policy requiring cell phones to be turned off and stored in lockers during the school day by placing a call from her cell phone while on school property. A teacher confiscated the phone. School officials then examined the contents of the cell phone and discovered what appeared to be inappropriate photographs stored in the phone's memory.

The phone was turned over to the police. The court opinion states that, "Aside from one photograph taken by a female friend, the photographs were taken by [the student] alone, and were intended for the sole consumption of herself and her long-term boyfriend. The photographs were taken off school property, were saved to the cell phone, were never e-mailed or uploaded to the internet, and were not shared with other students."

While the police did not seem intent on pursuing charges -- a detective allegedly told the student that "had she only waited until her 18th birthday, she could have submitted the photographs directly to Playboy magazine instead of getting in trouble -- the district attorney took the matter more seriously. He wrote a letter to the student threatening to bring child felony pornography charges against her unless the student (and some others) completed a re-education course on sexual violence and victimization.

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Source: law.com
By: Joshua A. Engel