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Hicks v. Sprint Nextel Corp.

United States District Court, D. Colorado

March 15, 2016

BRIAN HICKS, Plaintiff,
v.
SPRINT NEXTEL CORPORATION SPRINT NEXTEL COMPANY, LP, SPRINT COMMUNICATIONS COMPANY, L.P., and SPRINT SPECTRUM, L.P., Defendants.

ORDER

R. Brooke Jackson United States District Judge

This matter is before the Court on defendants’ Motion to Dismiss [ECF No. 46]. The motion has been fully briefed by the parties and is ripe for review. For the reasons discussed in this Order, defendants’ motion is granted.

I. FACTS

This civil case arises out of a murder conviction. ECF No. 20-1. Plaintiff Brian Hicks argues that defendants (collectively “Sprint”) failed to comply with the Stored Communications Act (SCA) by preserving and disclosing cell tower records that would have proved his innocence at trial. Id. Mr. Hicks alleges the following timeline of events:

• November 2006-December 2006: Mr. Hicks was incarcerated at the Denver County Jail. There was a pending criminal case against him in which Kaloniann Clark was prepared to testify for the prosecution. Id. at ¶ 3.
• December 6, 2006: Two masked gunmen kicked in the door of Ms. Clark’s home demanding money and drugs. The men ultimately shot and killed Ms. Clark after she attempted to flee. Id. at ¶ 5.
• November 2007: Denver Police Department (DPD) Homicide Detective Joel Humphrey contacted Sprint requesting preservation of call detail records and cell tower records for cell phones registered to Willie Clark (unrelated to Ms. Kaloniann Clark) and Shun Birch, suspects in the homicide. Id. at ¶ 9.
• January 4, 2008: the DPD obtained a warrant for the suspects’ cell tower records which was served upon Sprint. Id. at ¶ 45.
• January 2008: The Denver District Attorney’s Office brought the case before a grand jury. Id. at ¶ 8. The government’s theory of the case was that while Mr. Hicks was incarcerated at the Denver County Jail, he solicited Mr. Clark and Mr. Birch to murder Ms. Clark in order to prevent her from testifying against him. Id. at ¶ 3. The government alleged that Mr. Hicks made numerous calls from jail containing coded messages instructing Mr. Clark and Mr. Birch to murder Ms. Clark. Id. at ¶ 4.
• January 2008: Sprint sent a letter (2008 Letter) to Detective Humphrey confirming that it had provided the DPD with the requested cell tower records. Id. at ¶ 19.
• March 2008: Detective Humphrey testified before the grand jury. He claimed that Sprint had not provided the DPD with the cell tower records. He had been informed that in 2006 Sprint retained cell records for two months. Id. at ¶¶ 10, 18. The discrepancies between the 2008 Letter and Detective Humphrey’s testimony led Mr. Hicks and his counsel to conclude that Detective Humphrey received the cell tower records but did not disclose them to the defense. Id. at ¶ 20.
• January 31, 2011: Sprint representative Kerri Scarbo testified for the prosecution during Mr. Hicks’ trial. She testified that the 2008 Letter was incorrect because Sprint never provided the DPD with the cell records it requested. Id. at ¶¶ 24, 27. She claimed that the cell records would have been purged from Sprint’s database by the time the DPD served its warrant. Id. at ¶ 28. With respect to Sprint’s retention of cell records, Ms. Scarbo testified to the following facts:
o (1) in 2006 Sprint retained cell records for 60 days, Id.;
o (2) in 2007 Sprint started retaining cell records for 18 months, Id. at ...

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