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Case Law

2019 eDiscovery Case Law Year in Review, Part 1

It’s that time of year again!  Time for our annual review of eDiscovery case law!  This is our ninth(!) annual review of cases that we covered on the eDiscovery Daily blog over the past year.  As always, we had a number of interesting cases related to various eDiscovery topics.  So, as we have done for the last eight(!) years, let’s take a look back at 2019!

Last year, eDiscovery Daily published 66 posts related to eDiscovery and data privacy case decisions and activities over the past year, covering 56 unique cases!  The same number of cases as last year and less than a lot of years (believe it or not).  We’re up to 719 lifetime case law related posts, covering 558 unique cases since our inception back in 2010.  And, all case law posts are still online and available for research!  :o)

As always for the cases we did cover, we grouped them into common subject themes and will review them over the next few posts.  A few of them could be categorized in more than one category, so we took our best shot (let’s face it, there were a ton of sanctions cases we covered, but chose to classify some of them in other areas).  Perhaps you missed some of these?  Now is your chance to catch up!

It’s also worth noting that Tom O’Connor and I will once again be discussing some of these cases – and what the legal profession can learn from those rulings – on our webcast on Wednesday, January 29th – Important eDiscovery Case Law Decisions of 2019 and Their Impact on 2020 at noon CT (1pm ET, 10am PT).  The webcast is CLE accredited in selected states, so come check it out!

PASSWORDS AND FIFTH AMENDMENT PROTECTION

What better place to start than two of the most notable cases of this (or any other) year, dealing with forced provision of device passwords and the application of the “foregone conclusion” exception of the Fifth Amendment protection against self-incrimination. The only thing “common” about the result of these two cases is that they involved the Commonwealth of two different states.  Expect more cases to follow in this area:

In Decision That Sounds the “Death Knell” for Fifth Amendment Protection, Defendant Ordered to Provide Cell Phone Password: In Commonwealth v. Jones, the Supreme Judicial Court of Massachusetts reversed a lower court judge’s denial of the Commonwealth’s renewed Gelfgatt motion (where the act of entering the password would not amount to self-incrimination because the defendant’s knowledge of the password was already known to the Commonwealth, and was therefore a “foregone conclusion” under the Fifth Amendment and art. 12 of the Massachusetts Declaration of Rights), and the court remanded the case to the Superior Court for entry of an order compelling the defendant to enter the password into the cell phone at issue in the case.

Pennsylvania Supreme Court Rules that Forcing Provision of Computer Password Violates the Fifth Amendment: In Commonwealth v. Davis, the Supreme Court of Pennsylvania, in a 4-3 ruling, overturned a lower-court order that required a criminal suspect to turn over a 64-character password to his computer, concluding that “compelling the disclosure of a password to a computer, that is, the act of production, is testimonial” and rejecting the Commonwealth’s argument that provision of the password was a foregone conclusion, finding that “the prohibition of application of the foregone conclusion rationale to areas of compulsion of one’s mental processes would be entirely consistent with” US Supreme Court decisions.

NON-PARTY DISCOVERY

It seems that one of the biggest trends of the year were cases where litigants were battling with non-parties to their cases to get the court to decide whether to order those non-parties to produce what was requested.  Here are six cases last year where courts decided on non-party discovery requests:

Court Denies Non-Party’s Request to Quash Subpoena in Telecommunications Dispute: In Fair v. Commc’ns Unlimited Inc., Missouri District Judge Rodney W. Sippel denied the motion to quash discovery filed by non-party Charter Communications (Charter), finding that the plaintiff had demonstrated that she had been unable to obtain the information from the defendants, that her request was not overbroad or unduly burdensome, that the information requested would not disclose personally identifiable information (PII) and that any sensitive or confidential information could be protected with redactions or a protective order.

Florida Appeals Court Upholds Ruling that Non-Party Had No Duty to Preserve Evidence: In Shamrock-Shamrock, Inc. v. Remark, the District Court of Appeal of Florida, Fifth District affirmed the summary final judgment in favor of the Appellee, holding that Florida law does not impose a duty on nonparties to litigation to preserve evidence based solely on the foreseeability of litigation.

Court Orders Plaintiff to Share in Discovery Costs of Non-Party: In Lotus Indus., LLC v. Archer, Michigan Magistrate Judge Anthony P. Patti granted in part and denied in part without prejudice non-party City of Detroit Downtown Development Authority’s (DDA) motion for protective order in connection with the Court’s order granting in part and denying in part the plaintiff’s motion to compel documents requested by subpoena, ordering the plaintiff to pay some of DDA’s discovery costs, but not as much as DDA requested.

Court Rejects Plaintiff’s Timeliness and Form Served Arguments; Grants Defendant’s Motion to Compel: In Frey v. Minter, Georgia Chief U.S. District Court Judge Clay D. Land rejected the plaintiff’s arguments that the defendant’s discovery requests were untimely and were not properly served and granted the defendant’s motion to compel against the plaintiff.  With regard to the defendant’s motion to compel against a non-party law firm, Judge Clay ordered that firm to provide the defendant with an estimated cost for responding to the requests, and upon payment of those costs, to produce the documents within twenty-one days.

Court Denies Plaintiff’s Request to Hold Non-Party in Contempt for Failing to Produce Native Files: In Smith v. TFI Family Services, Inc., Kansas Magistrate Judge Gwynne E. Birzer denied the Plaintiff’s Motion for Order Against Defendant State of Kansas Department for Children and Families to Show Good Cause Why it Should not be Held in Contempt and Motion for Sanctions for failing to produce ESI in native format with associated metadata.  Judge Birzer found that “Plaintiff cannot point to a ‘specific and definite’ section of the Court’s June 8, 2018 Order requiring specific types of ESI be produced or requiring records be produced in native format with associated metadata” and also that “Plaintiff has not made a particularized showing” why re-production of the PDF documents in native format with associated metadata “is relevant to the case at hand”.

Court Grants Motion to Compel in Elizabeth Holmes Theranos Criminal Case: In United States v. Holmes, et al, California District Court Judge Edward J. Davila granted the defendants’ motion to compel federal prosecutors to produce material responsive to six requests from the Food and Drug Administration (FDA) and the Centers for Medicare and Medicaid Services (CMS), disagreeing with the prosecution’s contention that it could not be compelled to produce documents from under Rule 16 because it lacked access to them.

MOBILE AND MESSAGING

One thing is clear – we are starting to see more and more cases where discovery of mobile device data and messaging application data (including data from ephemeral messaging applications) are part of discovery disputes, especially when parties fail to preserve that data.  Here are six cases that dealt with disputes regarding mobile and messaging data (two of them involved celebrities!):

Court Declines to Order Plaintiff to Produce Cell Phone in Employment Discrimination Case: In Santana v. MKA2 Enterprises, Inc., Magistrate Judge Teresa J. James denied the defendant’s Motion to Compel regarding the defendant’s request for the plaintiff to produce all of his cellphones for inspection and copying.  Judge James did order the plaintiff to “produce complete copies of all responsive text messages to the extent they have not already been produced.”

In Lawsuit Over Prince Music, Court Grants Monetary But Not Adverse Inference Sanctions (Yet): In Paisley Park Enter., Inc. v. Boxill, Minnesota Magistrate Judge Tony N. Leung granted in part the plaintiffs’ Motion for Sanctions Due to Spoliation of Evidence, ordering the Rogue Music Alliance (“RMA”) Defendants to pay reasonable expenses, including attorney’s fees and costs, that Plaintiffs incurred as a result of the RMA Defendants’ “misconduct”, and also ordered the RMA Defendants to pay into the Court a fine of $10,000, but chose to defer consideration of adverse inference instruction sanctions to a later date, closer to trial.

No Proof of Intent to Deprive Means No Adverse Inference Sanction: In DriveTime Car Sales Company, LLC v. Pettigrew, Judge George C. Smith granted in part and denied in part the plaintiff’s motion for spoliation sanctions against defendant Pauley Motor, denying the plaintiff’s request for an adverse inference sanction by ruling that “DriveTime has not sufficiently demonstrated that Pauley Motor acted with the requisite intent” when Bruce Pauley failed to take reasonable steps to preserve text messages when he switched to a different phone.  Judge Smith did “order curative measures under Rule 37(e)(1)”, allowing the plaintiff to “introduce evidence at trial, if it wishes, of the litigation hold letter and Pauley Motor’s subsequent failure to preserve the text messages.”

Court Recommends Finding of Intent to Deprive for Defendant’s Lost Text Messages: In NuVasive, Inc. v. Kormanis, North Carolina Magistrate Judge L. Patrick Auld recommended that, “because the record supports but does not compel a ‘finding that [Defendant Kormanis] acted with the intent to deprive [Plaintiff] of the [lost text messages’] use in the litigation, the Court submit that issue to the ‘jury, [with] the [C]ourt’s instruction[s] mak[ing] clear that the jury may infer from the loss of the [text messages] that [they were] unfavorable to [Defendant Kormanis] only if the jury first finds that [he] acted with the intent to deprive [Plaintiff] of the[ir] use in the litigation’”.

Mobile Phone Spoliation Ends Not One, But Two Cases for Kevin Spacey: In Commonwealth v. Fowler, a criminal prosecution, and a related civil action, Little v. Fowler, that stemmed from sexual assault allegations against the actor Kevin Spacey (whose legal name is Kevin Spacey Fowler), both cases were dismissed when the alleged victim was unable to produce a cell phone key to evidence in the two cases.

Court Infers Bad Faith for Plaintiffs Use of Ephemeral Messaging App: In Herzig v. Arkansas Foundation for Medical Care, Inc., Arkansas District Judge P.K. Holmes, III indicated his belief that the use and “necessity of manually configuring [the messaging app] Signal to delete text communications” on the part of the plaintiffs was “intentional and done in bad faith”.  However, Judge Holmes declined to consider appropriate sanctions, ruling that “in light of the [defendant’s] motion for summary judgment, Herzig and Martin’s case can and will be dismissed on the merits.”

We’re just getting started!  Tomorrow, we will cover cases related to cooperation, form of production, privilege and confidentiality disputes, social media related disputes and a key case regarding biometric security.  Stay tuned!

Want to take a look at cases we covered the previous eight years?  Here they are:

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Here’s a Webcast to Learn about Key Case Law for 2019 and How it Affects 2020: eDiscovery Webcasts

Hindsight is 2020.  Get it?  ;o)  With that in mind, 2019 was another notable year for eDiscovery case law with several significant rulings that stand to impact eDiscovery practices, the admissibility of evidence and the potential of sanctions for discovery violations.  How can these key case law decisions affect discovery within your organization?  Here’s a webcast that will discuss key case law rulings from last year and their impact on this year – and beyond.

Wednesday, January 29th at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Important eDiscovery Case Law Decisions of 2019 and Their Impact on 2020. In this one-hour webcast that’s CLE-approved in selected states, we will cover key 2019 case law decisions covered by the eDiscovery Daily blog and what the legal profession can learn from those rulings. Topics include:

  • Biometric Fingerprint Scanning and Privacy
  • Non-party ESI Requests in Litigation
  • Social Media Trends and Judge “Friending”
  • Password Provision and Fifth Amendment Protection
  • Staying Discovery while a Motion to Dismiss is Considered
  • Case Law Trends in Ephemeral Messaging App Discovery
  • Case Law Trends in Mobile Device Discovery
  • Sanctions Trends under Rule 37(e)
  • Sanctions and Case Strategy
  • Inadvertent Disclosures and Sanctions

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn how key case law rulings from last year can impact this year, this webcast is for you!

So, what do you think?  Are you big on case law and like to second guess judicial decisions?  If so, please join us!  If not, please join us anyway!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily 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 Denies Plaintiff’s Motion for Sanction for Spoliation of Audio Recording: eDiscovery Case Law

In Montoya v. Loya Ins., No. 18-590 SCY/JFR (D.N.M. Oct. 24, 2019), New Mexico Magistrate Judge Steven C. Yarbrough denied the plaintiff’s Motion For Sanctions For Spoliation Of Audio Recording Evidence, after a jury trial in favor of the plaintiff, finding that there was minimal prejudice to the plaintiff and that “there is no dispute over the relevant contents of the telephone conversation” which was recorded.

Case Background

In this case involving a bad faith claim against the plaintiff’s insurance company for its handling of her claim under her uninsured motorist benefits, the defendant took a recorded statement from the plaintiff in the course of its investigation but lost it.  The plaintiff was forced to file suit against the defendant in state court in February 2017 and the jury rendered a verdict in favor of the plaintiff against the defendant in January 2018 in the amount of $23,742.82.  Despite that, the plaintiff sought a finding of liability against the defendant as a sanction for its failure to preserve the recorded statement the defendant took from the plaintiff during its investigation of her claim.

Judge’s Ruling

Considering the plaintiff’s claim, Judge Yarbrough stated: “The Court agrees that the loss of the recording caused Plaintiff some prejudice, as it prevented her from obtaining a full transcript of the conversation rather the parts that Ms. Boneo chose to record in her notes. This prejudice, however, is minimal.”

Continuing, Judge Yarbrough provided three reasons for this, as follows:

“First, Plaintiff herself was part of the conversation. Thus, the loss of the recording did not deny her access to the conversation. Plaintiff therefore retains the ability to testify about conversation despite the loss of the recording…Second, Plaintiff was able to depose the adjustor and thereby obtain the adjuster’s testimony about the conversation. Because Plaintiff has independent personal knowledge of this conversation that she was part of and because Plaintiff obtained the adjuster’s notes and testimony about the conversation, Plaintiff has the means to adequately prepare for trial… Third, and most importantly, there is no dispute over the relevant contents of the telephone conversation. Plaintiff testified in her deposition that she agreed with the substance of Ms. Boneo’s testimony regarding the contents of Plaintiff’s statement.”

As a result, Judge Yarbrough stated: “Any prejudice Plaintiff might suffer from not having a recording of the statement is slight and does not justify the only relief Plaintiff requests: a finding of liability against Defendant. Plaintiff’s Motion For Sanctions For Spoliation Of Audio Recording Evidence (Doc. 75) is therefore DENIED.”

So, what do you think?  Should the judge have penalized the defendant for losing the recording?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

It’s our last post of the year, so I want to thank all of you for reading our blog all year, attending our webcasts and for all of the support!  Can’t believe we are in the midst of our tenth year and your support has made it possible to keep producing blog posts daily.  In this holiday season, I’m very thankful for your support and also thankful for the love of my wife, Paige, and our kids, Kiley and Carter.  Happy holidays and see you in 2020!

:o)

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily 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 Infers Bad Faith for Plaintiffs Use of Ephemeral Messaging App: eDiscovery Case Law

We’re catching up on notable cases from earlier in the year.  Here’s one that’s notable regarding the use of ephemeral messaging and spoliation sanctions.

In Herzig v. Arkansas Foundation for Medical Care, Inc., No. 2:18-CV-02101 (W.D. Ark. July 3, 2019), Arkansas District Judge P.K. Holmes, III indicated his belief that the use and “necessity of manually configuring [the messaging app] Signal to delete text communications” on the part of the plaintiffs was “intentional and done in bad faith”.  However, Judge Holmes declined to consider appropriate sanctions, ruling that “in light of the [defendant’s] motion for summary judgment, Herzig and Martin’s case can and will be dismissed on the merits.”

Case Background

In this case where the plaintiffs alleged unlawful termination due to age discrimination, the parties conferred and agreed that the defendant might request data from the plaintiffs’ mobile phones and that the parties had taken reasonable measures to preserve potentially discoverable data from alteration or destruction.  In July 2018, the defendant served requests for production on the plaintiffs and, in September 2018, Plaintiffs Brian Herzig and Neal Martin produced screenshots of parts of text message conversations from Martin’s mobile phone, including communications between Herzig and Martin, but nothing more recent than August 20, 2018, even after a motion to compel.

After the August production, Martin installed the application Signal (which allows users to send and receive encrypted text messages accessible only to sender and recipient, and to change settings to automatically delete these messages after a short period of time) on his phone.  Herzig had done so while working at the defendant.  Herzig and Martin set the application to delete their communications and, as a result, disclosed no additional text messages to the defendant, which was unaware of their continued communication using Signal until Herzig disclosed it in his deposition near the end of the discovery period.  The defendant filed a motion for dismissal or adverse inference on the basis of spoliation.

Judge’s Ruling

In assessing the defendant’s motion, Judge Holmes stated that “Herzig and Martin had numerous responsive communications with one another and with other AFMC employees prior to responding to the requests for production on August 22, 2018 and producing only some of those responsive communications on September 4, 2018. They remained reluctant to produce additional communications, doing so only after AFMC’s motion to compel. Thereafter, Herzig and Martin did not disclose that they had switched to using a communication application designed to disguise and destroy communications until discovery was nearly complete. Based on the content of Herzig and Martin’s earlier communications, which was responsive to the requests for production, and their reluctance to produce those communications, the Court infers that the content of their later communications using Signal were responsive to AFMC’s requests for production. Based on Herzig and Martin’s familiarity with information technology, their reluctance to produce responsive communications, the initial misleading response from Martin that he had no responsive communications, their knowledge that they must retain and produce discoverable evidence, and the necessity of manually configuring Signal to delete text communications, the Court believes that the decision to withhold and destroy those likely-responsive communications was intentional and done in bad faith.”

However, Judge Holmes also stated: “This intentional, bad-faith spoliation of evidence was an abuse of the judicial process and warrants a sanction. The Court need not consider whether dismissal, an adverse inference, or some lesser sanction is the appropriate one, however, because in light of the motion for summary judgment, Herzig and Martin’s case can and will be dismissed on the merits.”  As a result, the requested sanctions were denied as moot.

So, what do you think?  Should use of an ephemeral messaging app when a duty to preserve attaches lead to significant sanctions?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Despite Email from Defendants Instructing to Destroy Evidence, Court Declines Sanctions: eDiscovery Case Law

In United States et al. v. Supervalu, Inc. et al., NO. 11-3290 (C.D. Ill. Nov. 18, 2019), Illinois District Judge Richard H. Mills, despite an email produced by the defendants with instructions to their pharmacies to destroy evidence, denied the relators’ motion for sanctions, stating: “Upon reviewing the record, the Court is unable to conclude that Defendants acted in bad faith. If the evidence at trial shows otherwise and bad faith on the part of the Defendants is established, the Court can revisit the issue and consider one or both of the sanctions requested by the Relators or another appropriate sanction.”

Case Background

In this case, the defendants produced in discovery a January 27, 2012 email from a pharmacy district manager for 33 Shop ‘n Save pharmacies, instructing those pharmacies to “throw away all your competitor’s price matching lists and get rid of all signs that say we match prices.” The email was sent seven days after the January 20, 2012 government agents’ visits to the defendants’ pharmacies, including one of the district manager’s pharmacies, five days after the manager learned of the visit by a Special Agent with the Department of Health and Human Services, Office of Inspector General (“HHS-OIG”), and three days after the defendants received a subpoena from the Government requesting documents regarding the price match program.

The relators further alleged it appeared that another district manager ordered the destruction of signage promoting the defendants’ price match program after visits by government agents and service of the HHS-OIG subpoena and also alleged the defendants waited until almost the end of discovery to produce the January 27, 2012 email.  As a result, they requested the entry of an Order imposing appropriate sanctions against the defendants for what they alleged was (1) Defendants’ failure to timely issue a litigation hold; (2) the intentional destruction of material evidence relating to defendants’ price match program; and (3) their subsequent efforts to conceal and obstruct discovery of their spoliation of evidence, including the wrongful withholding of material evidence of the spoliation until just days before the close of discovery in this case.

The defendants, in turn, claimed (1) they timely issued a litigation hold in this matter; (2) did not intentionally destroy material evidence; and (3) did not attempt to conceal and obstruct discovery of any alleged spoliation of evidence.  The Defendants claimed they issued three litigation holds: (1) one to individuals in the corporate business department on January 30, 2012; (2) one to all Pharmacy District Managers on February 20, 2012; and (3) one to the corporate marketing and advertising executives on March 15, 2012.  Alleging there were inconsistencies in both the number and timing of the litigation holds between defendant declarations, the relators asked the Court for an in camera review of the three litigation holds noted above.

Judge’s Ruling

Judge Mills, in noting that “A showing of bad faith—like destroying evidence to hide adverse information—is a prerequisite to imposing sanctions for missing evidence”, ruled as follows:

“The Court does not believe that an in camera review of the Defendants’ litigation holds is necessary at this time. At this time, the Court does not believe that sanctions are warranted based on the Defendants’ alleged failure to timely issue a litigation hold, their intentional destruction of evidence relating to the price match program, or their efforts to conceal and obstruct discovery of the spoliation of evidence. Upon reviewing the record, the Court is unable to conclude that Defendants acted in bad faith. If the evidence at trial shows otherwise and bad faith on the part of the Defendants is established, the Court can revisit the issue and consider one or both of the sanctions requested by the Relators or another appropriate sanction.

Ergo, the Relators’ motion for sanctions [d/e 205] is DENIED.”

So, what do you think?  Do the defendants’ actions seem to be in bad faith or was the Court’s ruling appropriate?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily 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 Denies Criminal Defendant’s Motion to Suppress Evidence Obtained via Warrantless Search: eDiscovery Case Law

In United States v. Caputo, No. 3:18-cr-00428-IM (D. Or Nov. 6, 2019), Oregon District Judge Karin J. Immergut denied the defendant’s motion to suppress emails and evidence derived from a warrantless search of Defendant’s workplace email account, finding “any expectation of privacy in Defendant’s work email was objectively unreasonable under the military’s computer-use policies in effect at his workplace.”

Case Background

In this case where the defendant was indicted on four counts of wire fraud, the defendant filed a motion to suppress emails and evidence derived from a warrantless search of the defendant’s workplace email account.  The Government’s response to the motion provided additional facts about the email account and the context in which it received copies of the defendant’s emails, including an image of the banner message displayed when the defendant logged on to his work computer system and two policies which governed the defendant’s computer use at work.

During the period at issue in this case, the warning banner advised (among other things) that at any time, the US Government may inspect and seize data stored on the information system.  The defendant was also subject to the Oregon National Guard’s acceptable use policy and Employees of the Oregon National Guard, including the defendant, were required to sign the policy before they received computer access. They also had to acknowledge and recertify their understanding of the policy annually.

Judge’s Ruling

Judge Immergut noted that “Defendant has not offered any evidence that he had a subjective expectation of privacy in his work email” and stated that “any expectation of privacy in Defendant’s work email was objectively unreasonable under the military’s computer-use policies in effect at his workplace.”

Judge immergut also rejected two cases that the defendant cited to support his claim of a reasonable expectation of privacy, stating that “neither case requires suppression here” and that “[u]nder these circumstances, it was objectively unreasonable for Defendant to expect privacy in his work email.”  As a result, Judge Immergut denied the defendant’s motion to suppress.

So, what do you think?  Should employees expect privacy within their work email accounts?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Pennsylvania Supreme Court Rules that Forcing Provision of Computer Password Violates the Fifth Amendment: eDiscovery Case Law

In Commonwealth v. Davis, No. 56 MAP 2018 (Pa. Nov. 20, 2019), the Supreme Court of Pennsylvania, in a 4-3 ruling, overturned a lower-court order that required a criminal suspect to turn over a 64-character password to his computer, concluding that “compelling the disclosure of a password to a computer, that is, the act of production, is testimonial” and rejecting the Commonwealth’s argument that provision of the password was a foregone conclusion, finding that “the prohibition of application of the foregone conclusion rationale to areas of compulsion of one’s mental processes would be entirely consistent with” US Supreme Court decisions.

Case Background

In this case involving alleged child-pornography activities, agents of the Office of Attorney General (“OAG”) executed a search warrant at Appellant’s apartment based upon a video found to contain child pornography being shared via a peer-to-peer file-sharing network (eMule) from an IP address associated with the appellant.  At Appellant’s apartment, after the agents discovered a single computer, an HP Envy 700 desktop, which was encrypted with TrueCrypt, Appellant informed the agents that he lived alone, that he was the sole user of the computer, and that only he knew the password to his computer.  When the agent requested that Appellant provide him with the password to the computer, he responded: “It’s 64 characters and why would I give that to you? We both know what’s on there. It’s only going to hurt me. No f*cking way I’m going to give it to you.”  Appellant was charged with two counts of disseminating child pornography in violation of 18 Pa.C.S. § 6312(c), and two counts of criminal use of a communication facility in violation of 18 Pa.C.S. § 7512(a).

On December 17, 2015, the Commonwealth filed with the trial court a pre-trial motion to compel Appellant to divulge the password to his HP 700 computer. Appellant responded by invoking his right against self-incrimination.  The trial court focused on the question of whether the encryption was testimonial in nature, and, thus, protected by the Fifth Amendment.  Applying the foregone conclusion exception, the trial court determined that the information the Commonwealth sought from Appellant was a foregone conclusion, in that the facts to be conveyed by Appellant’s act of production of his password already were known to the government. As, according to the trial court, Appellant’s revealing his password would not provide the Commonwealth with any new evidence, and would simply be an act that permitted the Commonwealth to retrieve what was already known to them, the foregone conclusion exception was satisfied.  A three-judge panel of the Superior Court later affirmed that ruling, leading to appeal to the Pennsylvania Supreme Court.

Judge’s Ruling

In the majority opinion written by Justice Debra Todd, she wrote:

“Based upon these cases rendered by the United States Supreme Court regarding the scope of the Fifth Amendment, we conclude that compelling the disclosure of a password to a computer, that is, the act of production, is testimonial. Distilled to its essence, the revealing of a computer password is a verbal communication, not merely a physical act that would be nontestimonial in nature. There is no physical manifestation of a password, unlike a handwriting sample, blood draw, or a voice exemplar. As a passcode is necessarily memorized, one cannot reveal a passcode without revealing the contents of one’s mind. Indeed, a password to a computer is, by its nature, intentionally personalized and so unique as to accomplish its intended purpose — keeping information contained therein confidential and insulated from discovery. Here, under United States Supreme Court precedent, we find that the Commonwealth is seeking the electronic equivalent to a combination to a wall safe — the passcode to unlock Appellant’s computer. The Commonwealth is seeking the password, not as an end, but as a pathway to the files being withheld. As such, the compelled production of the computer’s password demands the recall of the contents of Appellant’s mind, and the act of production carries with it the implied factual assertions that will be used to incriminate him. Thus, we hold that compelling Appellant to reveal a password to a computer is testimonial in nature.”

Judge Todd also, after commenting on several US Supreme Court rulings, stated “the prohibition of application of the foregone conclusion rationale to areas of compulsion of one’s mental processes would be entirely consistent with the Supreme Court decisions, surveyed above, which uniformly protect information arrived at as a result of using one’s mind. To broadly read the foregone conclusion rationale otherwise would be to undercut these pronouncements by the high Court.”

Judge Max Baer offered the dissenting opinion, stating: “In my opinion, the compulsion of Appellant’s password is an act of production, requiring him to produce a piece of evidence similar to the act of production requiring one to produce a business or financial document”.  He also stated: “Under the majority’s reasoning, the compelled production of documents would be tantamount to placing the defendant on the stand and requiring him to testify as to the location of the documents sought. The mere fact that Appellant is required to think in order to complete the act of production, in my view, does not immunize that act of production from the foregone conclusion rationale.”

Nonetheless, by a 4-3 vote, the Pennsylvania Supreme Court reversed the order of the Superior Court and remanded the matter to the Superior Court, for remand to the trial court, for proceedings consistent with the majority Opinion.

Here’s a case from earlier this year with a different result.

So, what do you think?  Should defendants be ordered to provide their passcodes, even if it leads to incriminating evidence against them?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Happy Thanksgiving!

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Here’s a Webcast to Learn about Important eDiscovery Developments for 2019: eDiscovery Webcasts

I know it seems like we just conducted a webcast (we did, three days ago), but we already have another one coming up!  2019 was another busy year from an eDiscovery, cybersecurity and data privacy standpoint.  What do you need to know about those important 2019 events?  Here’s a webcast that will discuss what you need to know about important 2019 events and how they impact your eDiscovery efforts.

On Wednesday, December 11 at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast 2019 eDiscovery Year in Review.  In this one-hour webcast that’s CLE-approved in selected states, we will discuss key events and trends in 2019, what those events and trends mean to your discovery practices and provide our predictions for 2020. Key topics include:

  • How Much Data is Being Transmitted Every Minute on the Internet in 2019
  • What a Lawyer’s Notification Duty When a Data Breach Occurs
  • General Data Protection Regulation (GDPR) and Data Privacy Fines
  • Biometric Security and Data Privacy Litigation
  • Cell Phone Passwords and the Fifth Amendment
  • How Organizations Are Doing on Compliance with the California Consumer Privacy Act (CCPA)
  • Social Media and Judges Accepting “Friend” Requests from Litigants
  • How #metoo and Investigations are Impacting eDiscovery within Organizations
  • Whether Emojis Are the Next eDiscovery Challenge
  • The Challenge to Obtain Significant Spoliation Sanctions under the New Rule 37(e)
  • Whether Lawyers Are “Failing” at Cybersecurity?
  • Outside Hackers vs. Internal Employees As Cybersecurity Threat
  • Sanctions Resulting from Inadvertent Disclosure of Privileged Information

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here – it’s not too late! Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn how key events and trends in 2019 can affect your eDiscovery practice in 2020, this webcast is for you!

So, what do you think?  Do you have FOMO (fear of missing out) on important info for 2019?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily 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 Denies Motion to Redact Portions of eDiscovery Teleconference: eDiscovery Case Law

In Pacific Biosciences of California, Inc. v. Oxford Nanopore Tech., Inc. et al., Nos. 17-275-LPS, 17-1353-LPS (D. Del. Nov. 4, 2019), Delaware Magistrate Judge Jennifer L. Hall denied the defendants’ Motion to Redact Portions of the August 14, 2019 Discovery Teleconference and the related submissions, stating: “The public has an interest in understanding judicial proceedings, even if they have a limited interest in documents submitted in connection with discovery dispute proceedings.”

Judge’s Ruling

In making her ruling, Judge Hall stated that “although there is no presumptive right of public access to discovery motions and supporting documents filed with the court,…the public does have a right of access to hearing transcripts.”  She also quoted Softview LLC v. Apple Inc., No. 10-389, 2012 WL 3061027, at *9 (D. Del. Jul. 26, 2012), which said: “[T]he party seeking the closure of a hearing or the sealing of part of the judicial record bears the burden of showing that the material is the kind of information that courts will protect and that disclosure will work a clearly defined and serious injury to the party seeking closure.”

Ruling on that, Judge Hall stated: “In this case, Defendants have failed to meet their burden to show that disclosure of the unredacted transcript would work a ‘clearly defined and serious injury’ upon them…I have also reviewed each of the proposed redactions, and I think that it is unlikely that the particular information at issue is capable of working the kind of serious injury contemplated by the rule. For example, the proposed redactions do not contain trade secrets, scientific data, strategic plans, or financial information. And merely stating that the proposed redactions contain discussions of documents marked ‘Confidential’ or ‘Highly Confidential’ is insufficient to support a motion to redact a transcript of a judicial proceeding…Finally, any minimal potential harm that disclosure might cause is outweighed by the public interest in having access to judicial proceedings.”

For those reasons, Judge Hall denied the defendants’ motion.

So, what do you think?  Are there situations where parties should be able to have proceedings redacted?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily 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 Agrees that Emails Including Counsel Aren’t Privileged Because They Don’t Offer Legal Advice: eDiscovery Case Law

In Guardiola v. Adams Cty. School District No. 14 et al., No. 1:18-cv-03230-RM-NRN (D.Colo. Oct. 25, 2019), Colorado District Court Judge Raymond P. Moore overruled the defendants’ objection to the magistrate judge’s order compelling them to disclose three e-mails that they contended were subject to the attorney-client privilege, ruling that “[t]he disputed e-mails do not directly request or offer legal advice.”

Case Background

In this case where the plaintiff claimed wrongful termination because of his association with an organization that the defendants believed was encouraging students to protest against the school board, the parties had a discovery dispute over e-mail concerning the implementation of new security measures at school board meetings in which members of Defendant Adams County School District No. 14 Board of Education and their counsel participated. The magistrate judge reviewed in camera five e-mails from the discussion and then invited briefing on the issue of attorney-client privilege. Both sides filed briefs.  The magistrate judge then determined two of the e-mails – one sent by counsel and another responding to it six minutes later – were privileged but the first, second, and portions of the fifth were not.

The magistrate judge found that the sender of the first e-mail was forwarding a security plan proposed by a third-party security provider and seeking input and direction from all the decision-makers, as well as counsel, about implementing it. The magistrate judge determined that the sender’s request was not privileged simply because the attorney was included in the discussion.  The magistrate judge found that the sender of the second e-mail was expressing concerns about strategy, perception, and public opinion and that the e-mail was not sent for the purpose of giving or receiving legal advice.  And the magistrate judge found that the sender of the fifth e-mail reflected the sender’s decision with respect to the proposed security plan and her reasons for that decision; thus, it was merely a business communication and not privileged.  The defendants objected.

Judge’s Ruling

Noting that “The privilege ‘protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege’”, Judge Moore stated: “The disputed e-mails do not directly request or offer legal advice. Nor are they necessary to obtain such advice. Instead, the disputed e-mails are part of a broader discussion about increasing security at school board meetings. Although legal considerations are one component of that discussion, the disputed e-mails, on their face, predominantly relate to other issues. The primary purpose of the first e-mail is to address logistical issues raised by a private security provider. The primary purpose of the second e-mail is to share concerns about managing public opinion. And the primary purpose of the fifth e-mail is to announce and explain the decision that was reached. To the extent legal issues are tangentially related to the broader topic of security, that is not enough to bring the content of these e-mails within the attorney-client privilege.”

Noting that “Defendants cite no authority, nor is the Court aware of any, for the proposition that the Court is precluded from assessing the e-mails at face value and based on the context in which they were sent”, Judge Moore stated, in overruling the defendants’ objection: “Defendants have failed to show that the attorney-client privilege applies to the disputed e-mails and that the magistrate judge’s ruling was clearly erroneous or contrary to law.”

So, what do you think?  Should emails including counsel always be considered privileged or do they need to include legal advice?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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