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Case Law

Plaintiff Ordered to Produce Facebook Photos and Messages as Discovery in Personal Injury Lawsuit – eDiscovery Case Law
 

In Forman v. Henkin, 2014 NY Slip Op 30679 (NY Sup. Ct. Mar 19, 2014), a Motion to Compel was granted in part for a defendant who requested authorization to obtain records of the plaintiff’s private postings to Facebook.

In this New York personal injury litigation, the plaintiff had been injured after falling off a horse owned by the defendant. During deposition, the plaintiff testified that she had posted photos of herself engaged in various activities on Facebook prior to the accident, and that she could no longer engage in those activities due to her injuries. Additionally, the plaintiff alleged that she had suffered brain injuries from the fall, which have impaired her ability to read and write, leaving her unable to compose text messages and emails. The plaintiff also claimed that her memory had been impaired, and so she could not remember whether she had posted any photos on Facebook after the injury.

At some point after the accident, but prior to the litigation, the plaintiff had deactivated her Facebook account. The defendant filed a “motion to compel disclosure or for penalties due to the plaintiff’s nondisclosure” requesting access to the plaintiff’s photos, status messages, and instant messages on the Facebook account. No time frame was specified for the defendant’s request.

Judge Lucy Billings noted that any photos of the plaintiff prior to her injury would be of little probative value, because “[i]f she did post such photographs on Facebook, they only will corroborate her testimony. If she did not post such photographs, their absence will not show that she did not engage in various activities before her injury that she no longer engages in.” However, it was stated that photos of the plaintiff after the accident would be of probative value. Specifically, “Photographs of plaintiff engaging in various activities after her injury, particularly any activities she claims she no longer is able to engage in due to her fall from defendant’s horse…”

In addition to photos, the defendant requested writings by the plaintiff from both pre-injury and post-injury time frames, to assess “the impact of plaintiff’s injury on her ability to reason, find words, write, and communicate effectively.” Judge Billings agreed that the defendant was entitled to request the plaintiff’s writings, both after the accident and for a limited time period leading up to the accident for the purposes of comparison. In addition, the defendant was permitted to obtain a psychological and a physical examination of the plaintiff to assess her communication abilities. However, it was noted that the plaintiff’s writing outside of private Facebook messages, along with a single examination, “may not fully reveal the frequency, speed, and volume of her writing,” and therefore the defendant was entitled to obtain Facebook records showing “each time plaintiff posted a private message and the number of characters or words in the text of each private messages,” for a time period from the date of the accident to the deactivation of her Facebook account.

The plaintiff was ordered to produce within 20 days all photos of herself engaged in the activities she intends to introduce at trial that were posted to Facebook, as well as all photos posted to Facebook after her injury that do not contain nudity or romantic encounters, and to provide the defendant with authorization to obtain records from Facebook as stated.

So, what do you think? Should private Facebook accounts be subjected to discovery requests, even after accounts have been deactivated? Are Facebook records presented without the actual text of the messages or postings sufficient to introduce as evidence? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Apple Wins Another $119.6 Million from Samsung, But It’s Only 6% of What They Requested – eDiscovery Case Law

Those of you who have been waiting for significant news to report from the Apple v. Samsung litigation, your wait is over!

As reported last week in The Recorder (Jury Awards Apple $119.6 Million in Mixed Verdict), a California Federal jury ordered Samsung on Friday to pay Apple $119.6 million for infringing three of Apple’s iPhone patents.  However, the award was a fraction of the nearly $2.2 billion Apple was requesting.

According to the federal jury of four women and four men, nine Samsung mobile devices infringed on Apple’s “quick links” patent and three devices were found to have infringed on Apple’s “slide-to-unlock” patent.  The jury also calculated Samsung’s damages on Apple’s autocorrect patent, but ruled that Samsung products did not infringe on two other Apple patents.

The jury also awarded $158,400 to Samsung for its counterclaims of patent infringement against Apple.

In August of 2012, Apple was awarded over a billion dollar verdict, but U.S. District Judge Lucy Koh later reduced those damages to a measly $599 million and ordered a retrial on 13 of Samsung’s products, saying the earlier jury’s math on those gadgets didn’t add up.  Then, last November, a jury ruled that Samsung owed Apple another $290.5 million for selling mobile devices that infringed five iPhone and iPad patents, bringing the total awarded for infringing on Apple products back up to almost $930 million.  Now, the total awarded is back over a billion.

From the never ending case that brought us an adverse inference sanction and “patentgate”, resulting in another sanction for Samsung’s outside counsel (Quinn Emanuel Urquhart & Sullivan LLP) for their inadvertent disclosure of Apple license information, what can happen next?  Stay tuned.

So, what do you think? Will this case ever end? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

300,000 Visits on eDiscovery Daily! – eDiscovery Milestones

While we haven’t served over 300 billion burgers like McDonald’s, we have provided something to digest each business day for over 43 months.  We’re proud to announce that on Friday, eDiscovery Daily reached the 300,000 visit milestone!  It took us a little over 21 months to reach 100,000 visits and just over 22 months to triple that to 300,000!  On to 500,000!

When we reach key milestones, we like to take a look back at some of the recent stories we’ve covered, so, in case you missed them, here are some recent eDiscovery items of interest from the past six weeks.

After 2,354 Public Comments, One Major Change to the Proposed Federal Rules: By the February 15 deadline for the comment period, no less than 2,354 public comments had been filed regarding the proposed Federal Rules amendments.  Much of the controversy related to Rule 37(e)(1)(B), which included a hotly debated amendment that the court may impose sanctions or order an adverse jury instruction, but only if it finds that the failure to preserve caused “substantial prejudice” in the litigation and was “willful or in bad faith,” or that the failure to preserve “irreparably deprived a party of any meaningful opportunity” to litigate the claims in the action.  Since then, Rule 37(e) has been modified, not just once, but twice.

Government Attorneys Have eDiscovery Issues Too: From a confidence standpoint, 73% of respondents feel as confident or more confident in their ability to manage eDiscovery in their cases.  But, 84% of respondents feel somewhat or not at all effective in their agency’s ability to deal with the challenges of eDiscovery and 80% of respondents feel somewhat or not at all confident that if challenged their agency could demonstrate that their ESI was “accurate, accessible, complete and trustworthy.  These and other survey findings are available here.

Cloud Security Fears Diminish With Experience: According to a recent survey of 1,068 companies conducted by RightScale, Inc., concern about cloud security diminish as users gain more experience using cloud-based services.  Learn more about organizations’ cloud habits here.

Daughter’s Facebook Post Voids $80,000 Settlement: As reported a few weeks ago on CNN, the former head of a private preparatory school in Miami lost out an $80,000 discrimination settlement after his daughter boasted about it on Facebook.  That’s why it’s important to think before you hit send.  Even if you’re still in grade school.

New California Proposed Opinion Requires eDiscovery Competence: If a new proposed opinion in California is adopted, attorneys in that state had better be sufficiently skilled in eDiscovery, hire technical consultants or competent counsel that is sufficiently skilled, or decline representation in cases where eDiscovery is required.

Predictive Analytics: It’s Not Just for Review Anymore: One of the most frequently discussed trends in this year’s annual thought leader interviews that we conducted was the application of analytics (including predictive analytics) to Information Governance.  A recent report published in the Richmond Journal of Law & Technology (and discussed here) addresses how analytics can be used to optimize Information Governance.

How Do You Dispose of “Digital Debris”? EDRM Has Answers:  Those answers can be found in a new white paper discussed here.

Also, hackers took Typepad, our platform for hosting the blog, down for a bit.  But, we’re back and better than ever!

Want to get to know some of your litigation support colleagues better?  Leave it to Jane Gennarelli, who has provided profiles here, here, here, here, here and here.

We’ve also had 11 posts about case law, just in the last six weeks (and 296 overall!).  Here is a link to our case law posts.

Every post we have ever published is still available, so the blog has become quite a knowledge base over the last 43+ months.  Sometime this summer, we will publish our 1,000th post!

On behalf of everyone at CloudNine Discovery who has worked on the blog and other publications that have picked up and either linked to or republished our posts, thanks to all of you!  We really appreciate the support!  Now, on to the next topic.  🙂

And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Parties’ Failure to Cooperate Sparks Denial of Defendant’s Motion to Reconsider Court Ordered Discovery – eDiscovery Case Law
 

In Cactus Drilling Co. v. Nat’l Union Fire Ins. Co., 2014 U.S. Dist.. 11-14 (W.D. Okla. April 2, 2014), a largely contentious discovery phase was a major contributor to the decision of Oklahoma Chief District Judge Vicki Miles LaGrange regarding the defendant’s Motion to Reconsider, or Alternately, Motion for Clarification of the Court’s Order.

Discovery issues had plagued this litigation since the beginning, as both parties had repeatedly failed to communicate properly with one another, resulting in multiple interventions by the court. Upon the filing of the defendant’s Motion to Reconsider and a fourth request for continuation of the trial, Judge LaGrange held a hearing which discussed some of the discovery issues, among other things. The defendant stated at this hearing that some of the discovery documents requested by the plaintiffs—hard copies belonging to a key player who was no longer employed by the defendant—may have been inadvertently destroyed.

Pursuant to the hearing, Judge LaGrange instructed the parties to file status reports regarding the status of the discovery issues. While both parties accordingly filed a Joint Status Report soon after the hearing, once again there was a failure to communicate between parties, ultimately leading to the defendant’s filing of the Motion to Reconsider, or Alternately, Motion for Clarification of the Court’s Order.

This motion asked to reconsider an earlier court order that would allow discovery on the company’s document retention policies and litigation hold strategies, in order to investigate the circumstances under which the paper documents of the defendant’s former employee been destroyed. The defendant alleged that the court order was issued prematurely, and that it was irrelevant and not discoverable.

In response to the issue of the order being premature, it was found that this was not the case, as the defendant had known about the plaintiff’s request for this discovery at the time the parties filed the Joint Status Report, in which the defendant requested a ruling on whether they were required to produce discovery on their document retention policies along with a relevant witness for deposition.

The relevancy of the plaintiff’s discovery request was also addressed as such: “Plaintiff is entitled to inquire into the circumstances of the destruction of such relevant files while this litigation is pending, whether defendants took proper precautions, and whether such precautions were actually exercised by defendants’ employees. Thus, clearly a discovery request on defendants’ document retention and litigation hold practices and policies and whether such policies were followed with respect to [the former employee’s files] is relevant and discoverable.”

In conclusion, Judge LaGrange denied the defendant’s Motion to Reconsider, and ordered both parties once again to attempt to resolve the issues surrounding discovery and the defendant’s document retention and litigation hold practices in good faith.

So, what do you think? Should a party have the right to request discovery on document retention policies when relevant discovery documents are not obtainable? Should the cooperation—or lack thereof—between parties affect the court’s ruling on various motions? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Contentious Discovery Dispute Process Leads to Ruling on “Reasonably Usable Format” for ESI – eDiscovery Case Law
 

In Castillon v. Corrections Corporation of America, Inc., No. 1:12-cv-00559-EJL (D. Idaho Feb. 7, 2014), Idaho District Judge Edward J. Lodge found a discovery dispute over the form of production of electronically stored information (ESI) in favor of the defendants, who had already produced the requested data in what was ruled a “reasonably usable format.”

This civil rights action displayed a demonstrated lack of cooperation between opposing counsel from the outset of the discovery phase. Following the first discovery disputes, it was noted that counsel had “refused to interact with each other reasonably and civilly. Many of the motions and briefs filed by both parties are full of hyperbole and contain unfounded accusations against opposing counsel.” While a discovery mediation had been somewhat successful in that both parties resolved many of the issues and filed a Stipulation as to certain discovery disputes, contention returned after just over one month, when the plaintiffs filed a Motion to Compel regarding information that was allegedly covered in the production produced by the defendants thus far.

Specifically, the plaintiffs sought to compel “all documents and communications including copies of the unit log books, shift logs, and other activity logs for all staff and contractors” employed by the defendants, as well as “all documents and communications including all records containing the terms of compensation and bonuses for any CCA employee with any supervisory authority” within a stipulated time period of January 1, 2009, to December 31, 2012. This discovery was categorized under Requests for Production Nos. 10 and 12, respectively.

The plaintiffs claimed that the information provided by the defendants regarding compensation and bonuses contained data for only one of the three named employees in supervisory capacities that they had requested, and further that the time frame of the information provided was insufficient. Additionally, the plaintiffs took issue with the format in which the documents were provided—specifically, searchable PDFs. The plaintiffs argued that “this is not a reasonably usable format and request that this information be re-produced in machine readable format and also request data covering a longer period of time.”

With regard to the first point of information concerning three specific supervisory employees, Judge Lodge ruled that the two employees for which data was not provided were outside the scope of discovery for this case. Specifically: “They do not work at ICC. They are not prison wardens. Therefore, Plaintiffs’ Motion to Compel improperly seeks information that Plaintiffs did not include in their discovery request. Plaintiffs’ Motion is therefore frivolous.”

Regarding the form of production for the documentation requested, the defendants pointed out that they had produced the data from their timekeeping database in searchable PDF format, which is the format that their system natively exports data. The defendants outlined the scenario that would allow them to produce ESI in the .csv (comma separated values) format requested by the plaintiffs as unduly burdensome and duplicative, as it would “require CCA to write a script that would then enable [the system] to export the time detail information Plaintiffs seek,” a process that would be “lengthy and daunting” and require “a team of between three and four people […] to expend three to four days creating the script, testing it, and confirming the accuracy of the data it produces.”

Judge Lodge ruled that because the defendants had already produced the requested data, they would not be required to produce it again in a different form. Further, it was noted that searchable PDF format is considered a reasonably usable form because “as the name implies, it can be easily searched.” The plaintiffs’ Motion to Compel was denied, though it was stipulated that if the plaintiffs agreed in writing to pay the defendants’ expenses in creating the script required to produce data in the requested format, they could approach the defendants with such a request.

So, what do you think? Should the term “reasonably usable form” cover any searchable format of ESI? Which party should be responsible for the costs of producing ESI in a specified format agreed on during discovery? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Finds Rule for Arranging and Labeling Documents Does Not Apply to ESI – eDiscovery Case Law
 

In Anderson Living Trust v. WPX Energy Prod., No. CIV 12-0040 JB/LFG (D.N.M. Mar. 6, 2014), New Mexico District Judge James O. Browning granted the defendants’ Motion to Reconsider an earlier discovery ruling that would have required the defendants to arrange and label the discovery documents they had already produced, on the grounds that under Rule 34, this production was not considered electronically stored information.

At issue in this hearing was whether “a party must, under Rule 34(b)(2)(E)(i) of the Federal Rules of Civil Procedure, arrange and label electronically stored information (‘ESI’) to correspond to the categories in the request, or whether compliance with rule 34(b)(2)(E)(ii)—production of ESI in the form that the requesting party requests, or in another reasonably usable form—is sufficient.” This question was applied to the production of approximately 20,000 pages of hard copy documents, which the defendants had scanned and produced in the format requested by the plaintiffs.

Previously in the course of discovery for this case, both parties had reached an agreement concerning discovery for the defendants to convert particular hard copy documents “in the order they were maintained within each file” to “fully searchable PDF files.” However, once production was completed according to the plaintiffs’ specifications, the plaintiffs filed a motion to compel the defendants to arrange and label the scanned document in order to “designate which of the Plaintiffs’ numbered requests these documents are responsive to.” The plaintiffs maintained that they could not manage the “tens of thousands of pages of documents” produced by the defendants “[w]ithout knowing which documents correspond with specific requests and whether the Defendants have, in fact, produced any documents responsive to some requests…”.

The defendants voluntarily provided the plaintiffs with an index of their production in response to the motion to compel, and argued that requiring them to “parse through the verbiage of each request and narrow down precisely which file was produced in response to which request would take a significant amount of time” and would therefore be unduly burdensome.

Initially, Judge Browning was inclined to side with the plaintiffs, but after hearing the defendants’ Motion to Reconsider, it was concluded that under Rule 34, scanned hard copy documents would not be considered ESI, and therefore the requirement that “documents be produced either in the usual course of business or labeled to correspond to categories in the request” does not apply. Therefore, the defendants had met their discovery obligations.

Judge Browning stated in part: “From the evidence available to the Court, it appears that the Plaintiffs did more than merely ‘stipulate’ to the form of production – it appears the Defendants were the one making most of the concessions: they agreed to the Plaintiffs’ request to scan hard copy documents into ESI for the Plaintiffs’ convenience, and they assented to the Plaintiffs’ request to convert the information into PDF form, rather than the cheaper and more familiar [from the Defendants’ perspective] TIFF form.”

Therefore, the defendants’ Motion to Reconsider was granted, with the conclusion that the “defendants’ production of discovery in PDF format – consisting of items stored as ESI before the litigation, as well as approximately 20,000 pages of documents that existed in hard copy form before being rendered into ESI for production – is adequate, and no further production or labeling is required.”

So, what do you think? Should electronically stored information be defined solely as documents that already existed in electronic format prior to litigation? Should it be reasonably logical to assume that documents produced as discovery be arranged and labeled to correspond with responsive requests? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Use of a Bulk File Changer to Manipulate Metadata Leads to Sanctions for Defendant – eDiscovery Case Law
 

In T&E Investment Group, LLC v. Faulkner, Nos. 11-CV-0724-P, 3:11-CV-1558-P (N.D. Tex. Feb. 12, 2014), Texas District Judge Jorge A. Solis upheld the earlier recommendation of the Magistrate Judge to order an adverse inference sanction, along with monetary sanctions, against the defendant for manipulation of metadata.

In this litigation, it had been ordered that “a third party independent computer forensic expert jointly selected by the parties shall be permitted by defendants to have access to all of the computers used by the defendants during the year 2011, wherever located, for examination of their hard drives.” After examining the three computers produced by the defendants, the expert determined that one of the computers produced by an individual defendant had been manipulated.

In his report, the expert specifically stated that the defendant “created a new profile on PCL-03, copied data to it, and used a bulk file changer to alter the data in an apparent ‘attempt to make it look like that was his computer that he used all the time’.” It was noted that the majority of the manipulated data was not related to the issues of the lawsuit. Further, the expert “believed that someone used the bulk file changer to hide the existence of a computer that had not been produced in this case,” and identified the computer that was not produced as “Alienware.”

Evidence in the expert’s report indicated that the last use of the Alienware computer had been inside the individual defendant’s home, the day after defendants were ordered to produce all computers relevant to the litigation. Additionally, the report found that the missing computer had been connected to the computer identified as PCL-03, which contained the manipulated data. And further, evidence indicated that during the relevant time period, the defendant had sent emails from the Alienware computer.

The defendant testified that he had used the bulk fire changer only to attempt to “set them as read only,” allegedly so they could not be deleted, and further categorized the copied files as “a multitude of things related to our investor files, a lot of photos, PDFs, Word documents, just standard stuff that we update our investor base with.” However, it was ultimately concluded that this testimony was false.

The plaintiffs requested sanctions, and limited consideration to the three specific computers produced by the defendants, while denying the defendants’ objection to consideration of the absent Alienware computer because “a finding that Defendants manipulated data on PCL-03 in order to avoid production of the Alienware computer or any other relevant evidence remains a viable ground for sanctions.”

Broadly, the Magistrate Judge ruled that the defendants had a duty to preserve “the evidence at issue, including PCL-03, the Alienware computer, and any other computer used by Defendants in 2011 in their possession, custody, or control.” Additionally, it was deemed that despite the individual defendant’s insistence that the unproduced computer was not within his home, the “evidence overwhelmingly support[ed]” the determination of the expert with regards to the manipulated data and the existence and use of the Alienware computer.

It was ruled that the individual defendant “acted in bad faith” by altering the metadata on PCL-03 to make it appear that he had used the computer “for a number of years,” and that he had made false statements to the court about manipulating the data, and further that it was done “in the context” of the defendant’s failure to produce the Alienware computer. While the Magistrate Judge concluded that the plaintiffs had not been “irreparably prejudiced,” requisite prejudice was established because “a reasonable fact finder could conclude” that there was relevant information contained on the non-produced computer, and that spoliation had occurred. Therefore, the Magistrate Judge recommended that the jury be “given a spoliation instruction that would entitle the jury to draw an adverse inference that a party who intentionally spoliated evidence did so in order to conceal evidence that was unfavorable to that party.” In addition, a recommendation was made for monetary sanctions of $27,500.

Judge Solis, upon conducting a de novo review and hearing objections from the defendants, accepted the recommendations of the Magistrate Judge in imposing both the adverse inference and monetary sanctions against the defendants. 

So, what do you think? Are adverse sanctions sufficient to suggest electronic evidence that is not present due to data manipulation? Should a more stringent order be placed in cases where it is determined that evidence has been deliberately not produced? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiffs Triumph in Second Motion to Enforce Court Ordered Production of Email Attachments – eDiscovery Case Law
 

In Skepnek v. Roper & Twardowsky, LLC, 11-4102-KHV (D. Kan. Jan. 27, 2014), Kansas Magistrate Judge James P. O’Hara ruled on a second motion filed by the plaintiffs to enforce a discovery order that was not followed completely by the defendants – specifically, the plaintiffs sought to compel the production of email attachments that were not produced along with the emails themselves.

The defendants opposed the motion to enforce, first by claiming that the plaintiffs had failed to meet and confer with them regarding the production of the Electronically Stored Information (ESI). While federal rules state that a party filing a motion has a duty to confer with opposing counsel, the local rules for this district expand upon that duty, specifically stating that “a ‘reasonable effort’ to confer means more than mailing or faxing a letter to the opposing party” and that the parties must in good faith “converse, confer, compare views, consult and deliberate, or in good faith attempt to do so.”

Judge O’Hara noted that the opposing parties had exchanged correspondence and held a telephone conference in attempt to resolve this discovery dispute without the court’s intervention, and ruled that the plaintiffs had made a reasonable effort to confer with regard to producing email attachments.

The defendants also objected that the plaintiffs had waived their right to object to the form of production, which was at issue in that it resulted in emails being produced with the attachments missing. The defendants had been ordered to produce “all internal communications among defendants…that pertain to Requests for Production Nos. 6, 7, 10, and 11,” as well as “all electronic communications between Angela Roper, Kenneth Thyne or anyone else associated with Roper & Twardowsky, LLC and the fifteen individuals listed by defendants in their motion.” These emails had been produced in PDF format, which did not result in the attachments being produced.

The plaintiffs suggested that if the ESI had been produced in native format, the attachments would have been included in production. Here, the defendants countered that they have always produced documents in PDF format, including emails, and that it would be “duplicative and burdensome to comply with plaintiffs’ request.” Further, the defendants had claimed that their “e-mail server search was not capable of producing the attachments to the e-mails,” but offered to produce specific attachments requested by the plaintiffs.

Judge O’Hara noted that producing attachments that have not previously been produced is not duplicative, and questioned why the defendants would be able to “produce specific attachments upon request,” when they claimed it was “impossible” to include all of the attachments. Additionally, the defendants did not offer evidence that producing the attachments would be burdensome, and the plaintiffs had not requested re-production of all documents. Instead, they “point[ed] out that one way defendants could [produce the missing attachments] is by producing the e-mails in their native format.”

Stating that the defendants “do not have the leisure of picking and choosing what responsive documents to produce,” Judge O’Hara ordered the defendants to produce all relevant communications, including attachments. No sanctions were imposed, since “both parties are at fault to some degree for failing to adequately confer early on regarding the production of ESI,” but the defendants’ request to have the plaintiffs pay for their production time was denied.

So, what do you think? Should a phone conference constitute a reasonable effort to confer with regard to the production format of ESI? Is PDF ever an appropriate format to produce email communications when attachments are relevant to the litigation at issue? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiff Sanctioned for Spoliation of Digital Evidence in Sexual Harassment Lawsuit – eDiscovery Case Law
 

In Calderon v. Corporacion Puertorrique a de Salud, No. 12-1006 (FAB) (D.P.R. Jan. 16, 2014), the plaintiff was found to have violated his duty to preserve evidence during the discovery phase of this sexual harassment lawsuit. Sanctions were imposed, though not to the extent requested by the defendants.

The discovery dispute began over the Electronically Stored Information (ESI) produced by the plaintiff, which were in the form of messages from his phone exchanged between the plaintiff and a particular identified email address belonging to an unknown person who was alleged to be the harasser. The plaintiff produced relevant messages to the defendants, but also admitted that some of the messages had been deleted from his phone. In response, the defendants filed a motion in limine that sought to have all of the messages excluded, and requesting that the case be dismissed.

While the motion in limine was still pending, the defendants received ESI from the plaintiff’s phone service provider, which contained the plaintiff’s phone and text messages spanning the time period relevant to the case. These records showed that at least 38 messages, including some from the alleged harasser and others that were “the numerous text messages that [plaintiff] sent in response” were not among those messages produced by the plaintiff to the defendants. Therefore, the defendants filed a supplemental motion based on the missing messages that asked to sanction the plaintiff by dismissing the case, since spoliation of evidence had occurred.

The plaintiff filed a motion to quash, with the argument that the defendants had subpoenaed the plaintiff’s service provider before the discovery deadline, and had not given adequate pre-service notice. Therefore, the plaintiff claimed that the subpoena which resulted in the discovery of missing messages should be quashed as procedurally defective. However, it was noted that had the defendants given notice of the subpoena and the plaintiff objected, the subpoena would not have been quashed. Further, the late disclosure of the defendants’ receipt of phone records was determined to be harmless to the plaintiff.

In considering the motions, District Judge Francisco A. Besosa found that spoliation had indeed occurred. This was based on discovery of the 38 messages the plaintiff had deleted, some of which had included photos that were also not produced by the plaintiff. Additionally, the plaintiff’s records revealed that he had “reasonably foresaw litigation and had a duty to preserve relevant evidence,” because the plaintiff had contacted his attorney via his phone prior to the point where he admitted to “forwarding some messages…so that he ‘would be able to print’ them.” Judge Besosa stated that this constituted “conscious abandonment of potentially useful evidence” and indicated that the plaintiff believed the deleted messages would not help his side of the case.

While spoliation had been found to occur, Judge Besosa declined to sanction the plaintiff by dismissing the case, citing that dismissal of an entire lawsuit as a sanction is generally reserved for extreme cases, as cited in Benitez-Garcia v. Gonzalez-Vega, 468 F.3d 1, 5 (1st Cir. 2006), which stated: “[I]t has long been our rule that a case should not be dismissed with prejudice except when a plaintiff’s misconduct is particularly egregious or extreme.” Instead, Judge Besosa ruled that an adverse inference instruction to the jury was the most appropriate sanction for this case.

So, what do you think? Should the court consider quashing evidence that would not have been likely quashed during normal proceedings, if a party obtains such evidence outside of established processes? Are adverse inference instructions truly sufficient to exclude or caution against potential spoliation of evidence? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Definition of “Electronic Storage” Considered in Invasion of Privacy Lawsuit – eDiscovery Case Law
 

In Cheng v. Romo, No. 11-10007-DJC (D. Mass. Dec. 20, 2013), the interpretation of laws enacted prior to the modern Internet age served as a deciding factor in the outcome of this invasion of privacy lawsuit, which alleged a violation of the Stored Communications Act (SCA).

The plaintiff in this case had sued the defendant for violating the SCA by accessing his web-based emails without his authorization or consent. Here, the question was not whether the emails were read, as the defendant admitted to accessing the plaintiff’s emails. However, the defendant argued that because the plaintiff had previously opened the emails, they did not meet the definition of being in “electronic storage” as described by the SCA.

The question of whether these emails met the qualifications for “electronic storage” under the SCA was therefore addressed accordingly.

The definition of electronic storage as set forth under the SCA is “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication[.]” The plaintiff argued that the emails at issue were covered by at least the second prong, (B), of the definition under the SCA.

In considering this case, Massachusetts District Judge Denise J. Casper recognized that a clear precedent had not been established by previous cases that dealt with similar issues. Several courts have addressed the question of web-based emails as “electronic storage” with consideration of the SCA, with mixed results. Two competing findings in particular were referred to, e.g., Theofel v. Farey-Jones, 359 F.3d 1066, 1075 (9th Cir. 2003), which found that web-based emails were in electronic storage under this statute; and United States v. Weaver, 636 F. Supp. 2d 769, 770-73 (C.D. III. 2009), which found that “[p]reviously opened emails stored by Microsoft for Hotmail [email system] users are not in electronic storage” in the context of a criminal subpoena.

The decision was further influenced by the fact that the SCA was enacted in 1986, and that the statute employed “vague language” in which the definition for electronic storage has not changed since the laws were enacted. For context, it was noted that in 1986, “the process of network communication was still in its infancy; the World Wide Web, and the Internet as we know it, did not arrive until 1990.”

At contention as well was the term “backup storage” in the SCA, which the defendant contended did not apply to the plaintiff’s emails, as he had not made copies of the emails to store elsewhere, and therefore the web-based emails were the only copies existent and were not backups. However, because the statute was written at a time before the modern email system, Judge Casper reasoned that since the defendant “used her web browser to access [plaintiff’s] emails, the text of those emails were transmitted to her own Internet browser, which is how she was able to see, and later print, [plaintiff’s] emails.” Therefore, it was reasonably inferenced that regardless of the number of times the emails were viewed through downloads of web page representations into web browsers, the web-based service “continued to store copies of those same emails” and were held in “storage of such communication by an electronic communication service for purposes of backup protection of such communication” – meeting the “electronic storage” definition of the SCA.

In this jury trial, a verdict was returned in favor of the plaintiff. The defendant’s movement to judge as a matter of law was denied, and the case closed.

So, what do you think? Should the court have significant leeway for interpretation of statutes referring to electronic information that date back to pre-Internet periods? Should web-based emails automatically be considered a form of backup storage, in light of the way these services are used today? Please share any comments you might have or if you’d like to know more about a particular topic.

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