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Allysia Edwards

Spoliation and Defensible Deletion: What’s the Difference?

Spoliation and Sanctions

Spoliation, the destruction or manipulation of ESI, has become a prevalent issue in e-discovery. As evidenced by Atalian US New England, LLC v. Navarro, spoliation is often done deliberately. In response to allegations of fraud, the defendant deleted mobile device data and replaced it with fabricated evidence. The judge sanctioned the company for intending to deprive the opposing counsel of relevant information.[1] Negligence is another cause for spoliation. In McCoy v. Transdev Svc., Inc., Transdev faced default judgment for “inadvertently” deleting cell phone data. Though the content was unknown, the Court upheld its relevance, maintaining that it could have supported the opposition’s claims.[2] Faulkner v. Aero Fulfillment Services demonstrates that spoliation can also be an accidental offense. Ms. Faulkner initially adhered to production requests and produced her LinkedIn data in the form of an Excel spreadsheet. But when the defendants asked for the evidence in a different format, Ms. Faulkner was unable to comply because she had deactivated her account. The court decided against sanctioning the plaintiff because she had followed the initial production request, and it was the counsel’s responsibility to inform her of preservation obligations.[3]

Per Rule 37(e) of the Federal Rules of Procedure, sanctions for irreversibly deleting ESI include:

  • Court involvement to remedy any prejudices suffered by the opposing counsel
  • Court and jury presumptions that the lost information was unfavorable to the responsible party if the deletion was intentional
  • Dismissal of the action or motion for default judgment[4]

 

Defining Defensible Deletion

Unlike spoliation, defensible deletion involves the ongoing elimination of unneeded data to reduce the costs of storage and retention. Deletion is permissible by the Federal Rules of Procedure when the ESI isn’t being held for a legal, statutory, or business purpose. Legal teams should carefully design a deletion strategy so that they can decide what to keep, archive, and eliminate.[5]

 

Things to Keep in Mind for Defensible Deletion

  • Prepare a retention policy and schedule. Defensible deletion is a slow, meticulous process. Take your time, especially when handling large amounts of big data.
  • Establish an inventory of legal preservation obligations. Within the inventory, identify which data types are currently under legal holds (or likely to be held). Proper documentation and classification of your data will simplify the retention process.
  • Properly staff the deletion project with a range of experts in various fields.[6]

 

[1] R. Thomas Dunn, “Intentional Deletion and Manipulation of Electronic Data Leads to Default Judgement,” JD Supra, August 12, 2021, https://www.jdsupra.com/legalnews/intentional-deletion-and-manipulation-8546367/

[2] Michael Berman, “Defendant Unsuccessfully Argued that Plaintiff Could Not Show That Data on Cell Phone That Defendant Destroyed Was Relevant,” E-Discovery LLC, August 18, 2021, http://www.ediscoveryllc.com/defendant-unsuccessfully-argued-that-plaintiff-could-not-show-that-data-on-cell-phone-that-defendant-destroyed-was-relevant/

[3] Brielle A. Basso, “In It for the Long Haul: The Duty to Preserve Social Media Accounts Is Not Terminated Upon an Initial Production,” Gibbons, June 30, 2020, https://www.gibbonslawalert.com/2020/06/30/in-it-for-the-long-haul-the-duty-to-preserve-social-media-accounts-is-not-terminated-upon-an-initial-production/

[4] “Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanction,” Legal Information Institute, https://www.law.cornell.edu/rules/frcp/rule_37

[5] “Defensible Deletion Strategy: Getting Rid of Your Unnecessary Data,” Special Counsel, November 16, 2019, https://blog.specialcounsel.com/ediscovery/defensible-data-deletion-strategy-basics/

[6] Andrew J. Peck, Jennifer M. Feldman, Leeanne Sara Mancari, Dennis Kiker, “Defensible deletion: The proof is in the planning,” DLA Piper, February 5, 2021, https://www.dlapiper.com/en/us/insights/publications/2021/02/defensible-deletion-the-proof-is-in-the-planning/

Authenticating Communication Screenshots

Text messages and social media evidence can offer a plethora of relevant data. However, screenshots are not a reliable form of authenticating digital communication. Whether its Slack, Facebook Messenger, or email, screenshots of digital evidence can be easily fabricated.

Screenshot Failures in Court

  • Rossbach v. Montefiore Medical Center: To substantiate claims of workplace harassment and wrongful termination, the plaintiff submitted text screenshots from her former employer. The suit was dismissed after the court noticed emojis that an iPhone 5 is unable to depict.[1]
  • Moroccanoil v. Marc Anthony Cosmetics: In this trademark case, the court dismissed Facebook screenshots because of insufficient circumstantial evidence.[2]
  • R v. Martin: Facebook screenshots submitted to the police through an anonymous source were rejected by the court. The judge held that the anonymous source and the police couldn’t validate the authenticity of the evidence.[3]

How to Authenticate a Text Message Screenshot

Rule 901(b) of the Federal Rules of Evidence offers examples of authenticating all forms of digital evidence. The following are examples that are most applicable to screenshots of text messages:

  • Testimony of a Witness with Knowledge
  • Comparison by an Expert Witness or the Trier of Fact
  • Distinctive Characteristics and the Like
  • Evidence About Public Records
  • Methods Provided by a Statute or Rule (e.g. phone company records)[4]

How to Authenticate a Social Media Screenshot

  • Testimony from the alleged poster claiming ownership of the profile in question.
  • Expert testimony validating that the content originated from the alleged creator’s device.
  • Witness testimony confirming that the alleged author was the true creator of the content based on distinct characteristics.[5]
  • Testimony from the social media network stating that the alleged creator of the post(s) had exclusive access to the device in question and social media account.[6]

Conclusion

Though screenshots may seem like an easy ESI production method, it’s best to collect evidence from native files. However, Rene v. State of Texas demonstrates that screenshots can be helpful when utilized correctly. In this case, the defense argued against the admittance of evidence from the defendant’s MySpace account. They maintained there was no evidence of when the pictures were taken, who captured them, or if they were real. Yet, the court approved their admittance because more compelling data supported the evidence in the screenshot.[7] Rene v. State of Texas exemplifies that communication screenshots are best utilized as supporting evidence rather than the foundation of an argument.

 

[1] Philip Favro, “Fabricated Text Message Case Highlights the Importance of Emojis in E-Discovery,” Legaltech News, August 16, 2021, https://www.law.com/legaltechnews/2021/08/16/fabricated-text-message-case-highlights-the-importance-of-emojis-in-e-discovery/?kw=Fabricated%20Text%20Message%20Case%20Highlights%20the%20Importance%20of%20Emojis%20in%20E-Discovery

[2] “Court Cases Involving Social Media,” Bosco Legal Services, Inc. Accessed August 22, 2021, https://www.boscolegal.org/court-resources/social-media-case-law/

[3] Ramna Safeer, “Shedding Light on Screenshots as Electronic Evidence,” Thecourt.ca, January 18, 2021. http://www.thecourt.ca/r-v-martin-shedding-light-on-screenshots-as-electronic-evidence/

[4] “Rule 901 – Authenticating or Identifying Evidence,” Rules of Evidence, Accessed August 23, 2021, https://www.rulesofevidence.org/article-ix/rule-901/

[5] Denise A. Blake, “Social Media Evidence at Trial,” The People’s Law Library of Maryland, May 19, 2021, https://www.peoples-law.org/social-media-evidence-trial

[6] Michaela Battista Sozio, “Authenticating Digital Evidence at Trial,” American Bar Association, April 27, 2017, https://www.americanbar.org/groups/business_law/publications/blt/2017/04/03_sozio/

[7] “Court Cases Involving Social Media,” Bosco Legal Services, Inc. Accessed August 22, 2021, https://www.boscolegal.org/court-resources/social-media-case-law/