Case Law

Court Grants Motion to Compel in Elizabeth Holmes Theranos Criminal Case: eDiscovery Case Law

In United States v. Holmes, et al, No. 5:18-cr-00258-EJD-1 (N.D. Cal. Nov. 5, 2019), 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.

Case Background

In this criminal case regarding charges of wire fraud and conspiracy to commit wire fraud against key officers of the now defunct company Theranos, on April 15, 2019, defendant Holmes (later joined by defendant Balwani) moved to compel federal prosecutors to produce material responsive to six requests from FDA and CMS.  In addition, the defendants raised concerns about the Agencies’ preservation efforts, the failure of FDA to run certain search terms and failure of the Agencies to complete production by either an original deadline of October 2 or an extended deadline of October 25.

Judge’s Ruling

Noting that Rule 16 “grants criminal defendants a broad right to discovery”, Judge Davila stated: “The Prosecution does not oppose Defendants obtaining the sought-after documents, but it argues that it cannot be compelled to produce the documents under Rule 16 because it lacks access…The court disagrees. Even though the Agencies are not part of DOJ, the Prosecution’s involvement with the Agencies’ discovery efforts reveals a relationship that includes significant access, communication and assistance, such as CMS’s use of DOJ’s Litigation Technology Service Center. This cooperative relationship moves the Prosecution closer to privity of knowledge and control of the information sought. The Prosecution’s access to the requested documents is further shown through its dealings with the Agencies prior to the filing of this motion.”  As a result, Judge Davila “order[ed] the Prosecution to produce the documents discussed below as part of their Rule 16 obligation, and to assist the Agencies however possible to ensure the timely production of documents.”

Turning to the alleged deficiencies in the Agencies’ productions, Judge Davila noted, among other concerns, that “Defendants contend that over 1000 emails from a single witness have been produced as fragmentary documents—i.e, that the produced emails omit portions of the original email, such as the “to,” or “from,” or the body fields… Defendants also contend that CMS and FDA have failed to produce some hardcopy documents.”  As a result, Judge Davila “order[ed] that the Agencies shall continue their investigations of these issues and shall disclose the procedures and results of their investigations to the parties no later than November 26, 2019.”

Judge Davila also ordered FDA to “run searches of all of its custodians’ documents using the following terms: ‘LDT’, ‘Laboratory Developed Test’, ‘Theranos’, ‘fingerstick’ or ‘finger stick’, and ‘nanotainer’” and “produce any responsive documents returned by these searches” to address search term concerns expressed by the defendants.  With regard to the missed production deadlines, Judge Davila “order[ed] the Agencies and the Prosecution to complete the production of documents by December 31, 2019.”

Finally, Judge Davila “order[ed] the Agencies, the Prosecution, and Defendants to meet and confer on the above issues, and other discovery related matters” to include “(a) whether the Agencies have or will produce employee text messages, (b) any deficiencies in FDA’s production that are attributable to FDA’s instruction to employees to manually search for responsive documents instead of forensically searching for, collecting, and reviewing documents, (c) the terms the Agencies use to search for and collect potentially responsive documents, and (d) FDA’s redactions to documents and withholding of duplicate documents.”  Judge Davila also set a further status conference for January 13, 2020.

So, what do you think?  Was the judge correct to order the prosecution to produce documents from other agencies?  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 Motion to Bar Plaintiff From Making Adverse Comments Regarding Defendant’s Failure to Produce Key File: eDiscovery Case Law

In Saulsberry v. Savannah River Remediation, LLC, No.: 1:16-cv-02792-JMC (D.S.C. Sep. 19, 2019), South Carolina District Court Judge J. Michelle Childs denied without prejudice the defendant’s Motion in Limine to Bar Plaintiff from Making Adverse Comments Regarding Defendant’s Failure to Produce Certain Records, finding that defendant “has not demonstrated that the contents of the missing Lash Investigative File would necessarily replicate, but not add to, the information provided in the record.”

Case Background

In this Title VII and § 1981 disparate treatment action filed by the plaintiff, she had previously made an internal EEO Complaint in 2013 which allegedly arose from her participation in the 2012 investigation of Robert Lash after which she contended that she was “targeted by her managers and treated differently”.  During discovery, the plaintiff filed a Motion to Compel the contents of the Lash Investigation, but the defendant admitted that it never produced the Lash Investigative File and also admitted that, although there was a physical Lash Investigative File, it submitted written discovery responses stating that no notes or other documentary evidence existed regarding the [Lash] investigation.

However, two deposed witnesses suggested that “documentary evidence which should be in hard copy of the [Lash] Investigative File” and the plaintiff indicated that she had provided some documents from the file to the EEO Director, as part of her internal EEO claim in September of 2013.  Nonetheless, the defendant was unable to locate the file.  The plaintiff contended that the Lash Investigative File was relevant to several of her remaining claims, while the defendant claimed that the file was no longer relevant to any remaining claim and filed a motion to have the court to bar the plaintiff’s ability to elicit testimony regarding the circumstances surrounding the disappearance of the file, contending the issue of “’why’ [Saulsberry] was included in the WFR is no longer relevant” to the claims before the court.

Judge’s Ruling

Judge Childs stated: “While the court agrees that the disappearance of the Lash Investigative File is relevant to the WFR claims which are no longer before the court, the court does not necessarily agree that the Lash Investigative File is not also relevant to the claims presently before the court.”  The plaintiff had argued that her remaining race and retaliation claims relate to her participation in the Lash investigation and also contended that evidence of her ‘protected activity’ (that prohibited her from being rehired for a position) was in the Lash File.  As a result, Judge Childs stated: “This court, therefore, shall not, at this time, prohibit Saulsberry from introducing evidence, or eliciting testimony regarding the Lash File and the circumstances surrounding its disappearance.”

With regard to the defendant’s argument that the plaintiff should be “precluded from seeking an adverse inference charge regarding the lost file”, Judge Childs stated: “The court has a similar view on this issue… SRR has not demonstrated that the contents of the missing Lash Investigative File would necessarily replicate, but not add to, the information provided in the record. Further, ‘Even if a court determines not to exclude secondary evidence, it may still permit the jury to draw unfavorable inferences against the party responsible for the loss or destruction of the original evidence.’ Vodusek, 71 F.3d at 156.  As a result, in denying the defendant’s motion, Judge Childs stated “the court declines to substantively exclude, at this time, all references to the disappearance of the Lash Investigative File or indefinitely preclude Saulsbury from making a showing that an adverse inference instruction based on its disappearance is warranted. Moreover, SRR has not addressed or demonstrated what, if any, prejudice would result if its motion is denied.”

So, what do you think?  Should parties be able to bar opposing parties for commenting about lost records in court proceedings?  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 Petitioners’ Motion to Quash, But Also Finds Subpoena Is Not Within Scope of Discovery: eDiscovery Case Law

In the case In re Verizon Wireless, Nos.: TDC-19-1744 | TDC-19-1799 | TDC-19-1806 | TDC-19-1808 | TDC-19-2118 | TDC-19-2119 | TDC-19-2120 | TDC-19-2121 | TDC-19-2122 | TDC-19-2123 (D. Md. Sept. 16, 2019), Maryland Magistrate Judge Charles B. Day denied the petitioners’ Motions to Quash the respondents’ subpoena, finding that the petitioners did not have sufficient standing to have the subpoena quashed for phone numbers owned by Prince George’s County.  However, Judge Day also found that the subpoena was overbroad and was not within the scope of discovery and, as a result, granted the petitioners’ Motions for Protective Orders.

Case Background

In this case involving claims of discrimination and retaliation against officers of color, the plaintiffs in the case served a subpoena on non-party Verizon Wireless in May 2019 seeking information as follows concerning 11 phone numbers identified in the subpoena:

“Records relating to the phone numbers attached…for the period January 1, 2016 through the present, including the time, date, duration, and destination/origin phone number for all incoming/outgoing calls, and the time, date, destination/origin phone number, and content for all text messages.”

The petitioners filed respective Motions to Quash in June 2019.  In July 2019, the plaintiffs informed Verizon by letter that they were withdrawing their subpoena request for text message records associated with the phone numbers and filed oppositions to the Named-Defendants’ Motions to Quash the same day (and filed oppositions to the Nonparty Petitioners’ Motions to Quash in August).  Later in July, the Named-Defendants filed replies to Plaintiffs’ Oppositions.

The petitioners argued that: 1) the subpoena was overly broad as it sought records and text content relating to a phone number for an entire three-year period without limiting the scope to the allegations raised in the Amended Complaint; 2) it was not reasonably calculated to lead to the discovery of admissible information and that it is not proportional to the needs of the case; and 3) even though Prince George’s County owns most of the phone numbers and issued them to employees to be used for conducting official business, the subpoena would capture not only “privileged and personal” information (such as communications with family or medical providers), it would also capture information about irrelevant police business.

Judge’s Ruling

Noting that Prince George’s County’s Electronic Information Policy “specifically states that employees have ‘no expectation of privacy regarding any information created, sent, received, or stored through or by Prince George’s County Governments electronic information systems’”, Judge Day stated: “The policy contains no caveat for disclosures to third parties, this includes the incidental personal use that is permitted by the policy. In short, while it may be permitted use, the employee is on notice that he or she should have no expectation of privacy when he or she uses a county-owned phone number.”  As a result, Judge Day ruled: “Petitioners do not have the requisite standing to have the Subpoena quashed” and denied the Motions to Quash.

However, Judge Day went on to state: “While the door of ‘standing’ is closed and locked, Petitioners effectively obtain the relief through another door regarding the scope of discovery. As discussed earlier, Petitioners contend that the Subpoena is overbroad and not proportional to the needs of this case. While they have not provided justification to have the Subpoena quashed, they do have standing to challenge the Subpoena for purposes of obtaining a protective order.”  Referring to the “storehouses of phone numbers, dates, and times of calls that would be injected into this case that have no relation to the claims and defenses of the parties” as “troubling”, Judge Day stated that “the broad swath of information sought here is not justifiable” and that “Respondents ask for too much to obtain too little”.  As a result, Judge Day granted the petitioners request that a protective order be put in place to prohibit the plaintiffs from seeking this information in the future.

So, what do you think?  Should producing a list of phone logs be considered unduly burdensome?  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.

Wal-Mart is Allowed to Clawback Inadvertent Disclosures, But Still Sanctioned Over What They Revealed: eDiscovery Case Law

In Bellamy v. Wal-Mart Stores, Texas, LLC, No. SA-18-CV-60-XR (W.D. Tex. Aug. 19, 2019), in a case that was discussed earlier this week at Relativity Fest, Texas District Judge Xavier Rodriguez ruled that the defendant was entitled to “claw back” the documents it inadvertently produced in the case, but still considered those documents in analyzing the plaintiff’s motion for sanctions and granted that motion to the extent that he ruled that the defendant could not assert any comparative negligence defense in this case, including arguing that the danger (of a pallet being left unattended in the store) was open and obvious.

Case Background

In this case involving a slip and fall, the plaintiff alleged that she sustained severe injuries to her knees and ankles when she tripped over a pallet in one of the defendant’s stores.  After the Magistrate Judge ordered the defendant to supplement its disclosures and discovery responses and provide the plaintiff with a privilege log as to any withheld documents as part of dismissing an earlier plaintiff motion for sanctions without prejudice, a paralegal in counsel for the defendant’s office inadvertently produced documents that the defendant claimed were privileged under the attorney-client privilege or work product. While arguing that some of the inadvertently produced documents were not privileged, the plaintiff also argued that the inadvertently produced documents demonstrated that defendant’s counsel acted in bad faith and engaged in discovery abuse.

Judge’s Ruling

While noting that “This Court encourages parties to enter into a Rule 502(d) Order” (which we have covered here previously), Judge Rodriguez also remarked that failing to request such an order “was the first of many mistakes by Defendant’s counsel in this case”, so he performed an analysis under Rule 502(b) to determine whether the defendant had waived privilege for the inadvertently disclosed documents.

Because the plaintiff ultimately conceded the documents were privileged after an in camera review by the Court, the Court decided not to “dwell on this issue”.  But, Judge Rodriguez did remark that “the privilege log was woefully deficient”, noting that he was “unable to ascertain the identities of various recipients of the emails in question.”  Nonetheless, finding that the disclosure was inadvertent, that the defendant took reasonable steps to prevent disclosure and that the defendant promptly took reasonable steps to rectify the error, Judge Rodriguez ruled that “Defendant is entitled to ‘claw back’ the documents it inadvertently produced” under Rule 502(b).

However, Judge Rodriguez also stated: “But that is not the end of this analysis. Although Plaintiff may not further use these documents in this case, preventing their use in analyzing the pending motion for sanctions would result in a perverse result, upending the rules of civil procedure and encouraging discovery abuse.”  In reviewing the inadvertently produced emails, Plaintiff’s counsel became aware of the following:

  • As early as July 23, 2018, Defendant’s counsel knew of the identity of the store manager who interviewed Plaintiff shortly after her accident;
  • As early as July 23, 2018, Defendant’s counsel knew of the identity of the employee who left the pallet unattended;
  • By August 6, 2018, counsel for Defendant knew of the addresses and phone numbers for these two persons; and
  • By February 9, 2019, counsel for Defendant knew the identity of the asset protection manager that was supposed to obtain the surveillance footage.

However, the defendant failed to list these individuals in their Rule 26(a)(1) initial disclosures and failed to timely list them in answers to interrogatories.  Judge Rodriguez stated: “It is apparent from a reading of the materials submitted either Defendant’s counsel was grossly negligent in fulfilling their discovery obligations or they realized they had an uncooperative manager who was refusing to assist in their investigation, and they did not want to disclose the identities of potentially ‘bad’ witnesses.”

In reviewing the inadvertently produced emails, Plaintiff’s counsel also became aware of the following:

  • On November 21, 2016, the manager completed a Document Preservation Directive requesting that surveillance video be collected, along with photos taken at the scene and the statement from the customer;
  • By January 16, 2018, Defendant was aware that the store lost the video and that the store manager was refusing to provide any statement;
  • Wal-Mart’s outside claim investigation agency reported that exposure on this claim was probable and suggested that the claim be “compromise[d] to avoid spoliation potential”; and
  • On June 29, 2018, one of Defendant’s outside counsel wrote an email to “Travis Rodmon-Legal” indicating that the claim file notes video from the scene was saved; “however, the Walmart discovery sources have not been able to provide a video to date.”

Judge Rodriguez stated: “Counsel for Defendant never disclosed to Plaintiff’s counsel that at one time video may have existed that was now lost. Rather, counsel merely kept repeating that video does not exist.”  It was also discovered that the defendant hired an investigator to conduct an undisclosed full social media/background check on the plaintiff on June 20, 2018.

While noting that the defendant had a duty to preserve the video, that it failed to take reasonable steps to preserve that video and that the video cannot be restored or replaced through additional discovery, Judge Rodriguez stated that “Rule 37(e)(2) is not applicable because Plaintiff has failed to establish that Wal-Mart acted with the intent to deprive her of the video.”  But he did rule that “Plaintiff has established prejudice under Rule 37(e)(1)” and, noting that “Defendant has raised a contributory negligence defense in this case” (arguing that the danger of the pallet was open and obvious), ruled that “Defendant may not assert any comparative negligence defense in this case, including arguing that the danger was open and obvious.”

So, what do you think?  Should inadvertently disclosed privileged documents be considered in ruling on sanctions motions?  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 Plaintiff’s Request to Hold Non-Party in Contempt for Failing to Produce Native Files: eDiscovery Case Law

In Smith v. TFI Family Services, Inc., No. 17-02235-JWB-GEB (D. Kan. Sep. 4, 2019), 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”.

Case Background

In this case involving alleged abuse of a child placed in a home by the defendants, the Court conducted an in-person hearing regarding the Kansas State Department of Children and Families’ (“DCF”) Amended Motion to Quash Subpoena and ultimately granted in part and denied in part the Motion to Quash on June 8, 2018, ordering DCF to produce certain records by July 31, 2018, with any responsive records subject to in-camera review to be produced directly to the Court for review.  DCF timely produced the records by July 31.  On October 24, 2018, after a review of the records submitted in-camera, the Court entered an order directing DCF to produce most of those documents to the plaintiff by November 30, 2018 and DCF timely produced those records as well.

On May 6, 2019, Plaintiff filed an instant Motion arguing DCF failed to comply with the Court’s June 28, 2018 Order because its November production did not contain six identified types of ESI in native format with associated metadata, instead producing the court-ordered documents (consisting of 5,767 pages) in PDF format on a USB flash drive.  The plaintiff asked the Court to issue an order: (1) requiring DCF to show good cause for why it should not be held in contempt of the Court’s June 28, 2018 Order; (2) requiring DCF to show good cause why it should not produce the requested ESI; and (3) imposing various sanctions on DCF pursuant to Fed. R. Civ. P. 37(b)(2)(A) for not obeying a discovery order.

Judge’s Ruling

Noting that “the subpoena asks for the records to be produced in ‘electronic format,’ but gives no specifics regarding whether the format should be PDF or native format with metadata intact”, Judge Birzer stated: “The Court is at a loss as to why Plaintiff would believe the June 8, 2018 Order required Defendant to produce the six above types of ESI when the subpoena did not specify it and the matter was not presented to the Court for consideration.”  As a result, Judge Birzer found that “the production of records in PDF format on an USB flash drive adequately satisfied DCF’s obligation under the June 8, 2018 Order, the subpoena and Rule 45” and that “there is no occasion for the undersigned Magistrate Judge to certify facts to the District Judge or to issue an order for DCF to show cause why it should not be held in contempt.”

Noting that “DCF is not a party to this action”, Judge Birzer also found that “requiring a non-party to spend time and money to re-produce 5,767 pages of PDF documents in native format with metadata would be burdensome and not proportional to the needs to the case considering Plaintiff has provided little reason as to why the native format and metadata would be relevant.”  As a result, Judge Birzer denied the plaintiff’s motion.

So, what do you think?  Could the plaintiff have done a better job of specifying its production format requirements up front?  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 Sanction Request for Attorney Who Hung Up on Opposing Counsel One Time: eDiscovery Case Law

In Ewing v. Aliera Healthcare, No. 19cv845-CAB-LL (S.D. Cal. Aug. 12, 2019), California Magistrate Judge Linda Lopez denied the plaintiff’s motion for sanctions for “rudely and unprofessionally” hanging up on the plaintiff during a call that defendant’s counsel made to the plaintiff to cancel a meet and confer appointment.

Case Background

In support of his motion, the plaintiff stated that “Local Rule 83.4 requires civil, courtesy and dignity in all communication, oral and written.”  The plaintiff also noted that defendant’s counsel “admitted to hanging up the phone on Plaintiff to the Court’s law clerk” and also requested permission to file a reply.

The defendant opposed the plaintiff’s motion on the grounds that “Plaintiff has failed to establish why Judge Lopez should sanction counsel for Aliera” noting that at issue is only “one phone call between Plaintiff and Aliera’s counsel on July 24, 2019.”  The defendant also stated:

“Plaintiff insists on recording every phone conversation, despite counsel for Aliera objecting to such recordings…The reason counsel cut his July 24 phone conversation short was because he had already confirmed that the meet and confer meeting with Plaintiff would take place on July 30; not on July 25 as Plaintiff later demanded, and despite Plaintiff’s protestations and desire to schedule it for the week of July 22…Plaintiff [then] insisted on demanding why Judge Lopez allowed Aliera’s counsel, Dwight Francis, to appear at the ENE on July 1, 2019. This extraneous demand was irrelevant to the topic of the July 24 call, and followed up on a letter Plaintiff had earlier written counsel on the same non-issue. Counsel, who was extremely busy, informed Plaintiff that he would need to take that issue up with Judge Lopez, and ended the call.”

Judge’s Ruling

Judge Lopez began her ruling by stating: “As an initial matter, the Court denies Plaintiff’s request for leave to file a reply. The Court has reviewed the briefing and finds that it has sufficient information on this issue. Notably, Plaintiff’s Motion lacks any law or authority in support of the request for sanctions.”

She ended her ruling by stating: “Here, the conduct at issue in Plaintiff’s Motion, defense counsel hanging up the phone prematurely one time during a conversation with Plaintiff, does not warrant sanctions. Indeed, defense counsel’s opposition sets forth a reasonable explanation of why defense counsel “cut short” the July 24, 2019 phone conversation. Accordingly, the Court DENIES Plaintiff’s request to impose sanctions. The Court also DENIES Defendant’s request to order Plaintiff to compensate Defendant for the time incurred in having to oppose the instant Motion. However, the Court reminds the parties that any future unprofessional conduct or otherwise improper conduct (including but not limited to filing motions with no basis in the law) may warrant a motion for sanctions by either party.”

So, what do you think?  Should attorneys be sanctioned for hanging up on each other?  Or for filing sanctions motions for opposing counsel doing so?  Or both?  ;o)  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.

Another Case Where Intent to Deprive is Put in the Hands of the Jury: eDiscovery Case Law

In Woods v. Scissons, No. CV-17-08038-PCT-GMS (D. Ariz. Aug. 14, 2019), Arizona Chief District Judge G. Murray Snow granted in part and denied in part the plaintiff’s motion for sanctions for spoliation of video footage of an arrest incident involving the plaintiff and the defendant (a police officer with the Prescott Police Department), ruling that non-party City of Prescott violated a duty to preserve evidence of the alleged incident, but that the question of intent should be submitted to the jury to determine appropriate sanctions.

Case Background

In this claim of excessive force against the defendant arising out of the plaintiff’s arrest in June 2016, the plaintiff alleged that after the defendant placed him in handcuffs, he struck the plaintiff several times while he lay face-down on the pavement, resulting in a fracture to his lower back which left him in severe pain and will likely require future surgery to repair.  Several officers arrived on the scene during the course of the arrest.  After the Prescott Police Department Review Board determined that no “criminal, civil or Department Policy violations” had occurred during the arrest, the plaintiff filed this action in February 2017.  Subsequently, the plaintiff filed a motion for spoliation sanctions, arguing that non-party City of Prescott violated a duty to preserve evidence of the alleged incident—video footage automatically captured by the cameras in the various officers’ vehicles—by allowing the footage to be automatically deleted from the police department’s systems.

Judge’s Ruling

Noting examples of at least two officers (in addition to the defendant’s) whose dash cams would likely have been recording, Judge Snow stated: “the available evidence, taken as a whole, establishes that dash cam footage was recorded by at least two vehicles that could have been relevant to Woods’ claim.”  Judge Snow also “decline[d] to assume that any recordings from the vehicles in question would have been irrelevant to Woods’ claim”, stating “the footage’s value cannot simply be replaced by having eyewitness testimony regarding Woods’ arrest—much of the value provided by video footage is that it allows a jury to make its own determination.”

Judge Snow also ruled that the City of Prescott (which was paying for legal representation for the defendant) “had a duty to preserve any video recordings from the responding officers’ dash cams once it knew that litigation was reasonably likely” (which was by April 2017, at the latest) and “the parties do not dispute that any footage has been erased.”  And, Judge Snow ruled that “[t]he spoliation can be imputed to Scissons”, observing that the City would pay any judgment against the defendant in the case.

As a result, Judge Snow granted in part and denied in part the plaintiff’s motion for sanctions, ordering the following: “Because there is evidence that video recordings of the alleged event existed but were not preserved, the jury will hear evidence concerning the potential existence of video footage and will be instructed that it may consider that evidence along with all other evidence in reaching its decision. It will also be instructed that if it determines that the Police Department destroyed evidence and did so with the intent to deprive Woods of the use of the video footage, it may infer that the footage would have been favorable to Woods. However, the Court declines to give the instruction as requested by Woods because the question of intent will be submitted to the jury.”

So, what do you think?  Should juries decide intent to deprive in spoliation disputes?  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 Grants Spoliation Sanctions for Defendant’s Failure to Preserve Photos of Prisoner Plaintiff: eDiscovery Case Law

In Wilmoth v. Deputy Austin Murphy, No. 5:16-CV-5244 (W.D. Ark. Aug. 7, 2019), Arkansas District Judge Timothy L. Brooks granted the plaintiff’s Motion for Relief Regarding Spoliation, finding that the “defendant’s conduct in this case was designed to deprive” the plaintiff the use of photographs in litigation that were purported to have shown injuries suffered by the plaintiff associated with his excessive force claim against the deputy defendant.

Case Background

In this case involving the plaintiff’s claim of excessive force against Deputy Murphy for an incident on August 12, 2016 in the plaintiff’s cell, Judge Brooks observed that “the facts surrounding that confrontation are disputed, but it is undisputed that Wilmoth sustained at least some bruising following the event.”  Pursuant to standard operating procedures, Deputy Zachary Hale took photographs of the plaintiff and his injuries using his personal cell phone (of which Sergeant Lira made specific mention in his resulting report), which were to be used in the resulting investigation of the incident.  But the photographs were either 1) never uploaded to the jail’s internal incident reporting system or 2) were uploaded and were subsequently misplaced or deleted – they were also never produced to the plaintiff during discovery.  Claiming that this evidence was intentionally destroyed or made unavailable to him by the defendant, the plaintiff requested an adverse inference instruction based on spoliation of evidence.

Judge’s Ruling

Judge Brooks began discussion of the issue by stating: “Before a Court can impose sanctions under Rule 37, it must first determine that the party had a duty to preserve electronically stored information. In this case, that proof is abundant.”  Noting that counsel for the defendants had issued a litigation hold letter to the officers of the Benton County Jail and that the Court’s initial scheduling order directed that, within 45 days, defendants were to provide the plaintiff with “a copy of all incident reports documenting incidents referenced in the Plaintiff’s complaint, including any color photographs”, Judge Brooks stated: “As such, defendant was clearly on notice—both through his own attorney and court orders, that he was under a duty to preserve documents relevant to the incidents recounted in Wilmoth’s complaint.”

Judge Brooks went on to note that “the evidence as a collective whole indicates that there were many times when defense counsel buried her head in the sand in this case and never fully committed to producing this evidence or discovering where it was” and “that includes conduct which might readily be viewed as intentional deception before this court.”

As a result, Judge Brooks ordered the following sanctions: “First, in light of Sergeant Lira’s role in conducting the investigation into Wilmoth’s sexual assault allegations, the Court finds it literally incredible to hear Lira explain that he does not remember what he did with the pictures that he acknowledged viewing in his report or why these photographs would not have been uploaded as a crucial part of his investigatory file in accordance with county policy. The Court finds that his actions in this case have severely undermined his credibility. Given his direct involvement in viewing and in failing to ensure preservation of these photographs, the Court finds that his actions demonstrate bad faith and that it would be appropriate to prevent the defendant from calling him as a witness in his case. The same sanction will also apply to Deputy Hale. Hale admitted during his deposition that although standard policy would have already required him to preserve and upload these photographs to the system, he certainly should have done so here given the nature of Wilmoth’s accusations against Deputy Murphy. Yet, he failed to take any reasonable steps to ensure preservation of the materials that he knew were crucial to the resulting investigation… Second, under Rule 37(e)(2)(B) and in light of the Court’s earlier finding that defendant and his counsel have willfully acted to prevent Wilmoth from accessing this documentary evidence that he claims would support his case, the Court will instruct the jury that it may, but is not required to, presume that the photographs in question would have supported Wilmoth’s claimed injuries arising from his in-cell confrontation with Deputy Murphy and that the lack of such photographic evidence should not be held against Wilmoth in this case.”

So, what do you think?  Were the sanctions granted appropriate for the level of spoliation?  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 Dueling Sanctions Motions from Both Plaintiffs and Defendants: eDiscovery Case Law

In Cox v. Swift Transportation Co. of Arizona, LLC, No. 18-CV-117-CVE-JFJ (N.D. Okla. Aug. 6, 2019), Oklahoma District Judge Jodi F. Jayne denied both the plaintiffs’ and defendants’ motion for sanctions for spoliation of evidence, finding no intent to deprive by either side to justify a sanction of either an adverse inference jury instruction or directed verdict (for the plaintiffs)/dismissal (for the defendants).

Case Background

In this case involving an accident between two tractor/trailers in which Plaintiff Adam Cox suffered severe injuries, both parties failed to preserve electronic data:

  • Defendant Swift Transportation Company (“Swift”) failed to preserve: (1) electronic control module (“ECM”) data of the Swift tractor/trailer driven by Defendant Sai Wai (“Wai”), which would have provided information regarding the speed of Wai’s vehicle at the time of the accident and any “Critical Event Report” prompted by hard braking or a sudden drastic change in speed; (2) messages delivered from Wai to Swift via the Qualcomm mobile communication system; and (3) Wai’s electronic driver “E-logs” for the 1.5 hours immediately prior to the accident, which were also stored electronically on the Qualcomm system.
  • Plaintiffs Adam and Kimberly Cox failed to preserve: (1) ECM data from Cox’s vehicle, which Defendants argue would have (a) provided information regarding the speed of Cox’s vehicle at the time of the accident, and (b) potentially bolstered its expert’s opinion that Cox failed to brake; and (2) Cox’s paper driver logs, which were on the dashboard at the time of the accident (“Logs”).

The plaintiffs filed a Motion for Sanctions Pursuant to Federal Rule of Civil Procedure 37 for Defendant Swift’s Spoliation of Evidence, requesting two alternative sanctions under Federal Rule of Civil Procedure 37(e): (1) a directed verdict on the issue of liability; or (2) an adverse inference jury instruction.  The defendants’ filed a Motion for Sanctions for Plaintiffs’ Spoliation of Evidence, requesting either the dismissal of the plaintiffs’ case or an adverse inference instruction regarding the spoliated evidence.

Judge’s Ruling

In considering the plaintiffs’ request for sanctions for failure to preserve the ECM Data/Qualcomm Messages, Judge Jayne stated: “After consideration of the record and the parties’ oral argument, the Court finds that Swift did not “act[] with the intent to deprive [Plaintiffs] of the information’s use in the litigation” and therefore declines to impose either of the severe sanctions requested by Plaintiffs…Swift’s stated reason for failing to download the ECM data or immediately place a litigation hold on evidence is adequately supported by [investigating Officer Jason] McCarthy’s investigation, conclusions, and report, and the Court finds no inference or indication that Swift engaged in bad faith or intentional conduct aimed at depriving Plaintiffs of this evidence.”

Citing defendant Swift’s explanation for failure to preserve 1.5 hours of E-Logs as caused by a failure to account for a Time Zone difference between Mountain and Central Time, Judge Jayne stated: “The Court finds this explanation plausible and consistent with the actual missing data. This explanation, at most, shows a negligent failure to retain by Swift. As explained above, negligent failures to retain evidence cannot support Plaintiffs’ requested sanctions in this case, and Plaintiffs’ motion for sanctions based on failure to preserve the missing E-logs is also denied.”

With regard to the defendants’ motion for sanctions, Judge Jayne stated “the Court easily concludes that Plaintiffs did not intentionally deprive Defendants of evidence or engage in any bad-faith conduct by failing to preserve the ECM data or the Logs. The engine, including the ECM device, was hauled away as debris from the scene of the accident by Environmental Remediation Services, Inc., (“ERS”), held for thirty days, and then sent to the scrap yard. Cox was in the hospital for five weeks following the accident. It strains reason to find that Plaintiffs acted with intent to deprive Defendants of this evidence when, at most, Plaintiffs failed to prevent another entity, ERS, from scrapping the engine pursuant to ERS’s own standard retention policy.”  She also characterized the plaintiffs’ explanation that the Logs on the dashboard were destroyed in the accident as “plausible” and stated: “Accordingly, Defendants’ requested sanctions of dismissal or an adverse inference instruction are denied.”

So, what do you think?  Should either party have attempted to obtain less severe sanctions instead?  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.

Cases I Will Be Covering Today During Litigation Support Day: eDiscovery Case Law

It’s a rare two-post day for us at eDiscovery Daily.  As we always do, we’re covering the notable sessions to check out at ILTACON today and that post is here.  But I’m also speaking at Litigation Support Day today in Session One (9:00 AM – 10:30 AM) on Legal Trends, discussing the most interesting case law decisions for 2019 so far with my good friend, David Horrigan!  If you’re attending that session, no need to take copious notes – the cases that we plan to discuss are also referenced and linked below so that you can check them out.  Hope to see y’all there!

Social Media Discovery and Judicial “Friending”: Here are a couple of cases that have interesting ramifications on the social media front.  Are pictures where you are “tagged” discoverable?  Should judges accept “friend” requests from litigants when a motion is pending?  See below.

  • In Vasquez-Santos v. Mathew, 8210NIndex 158793/13 (N.Y. App. Div. Jan. 24, 2019), the New York Appellate Division, First Department panel “unanimously reversed” an order by the Supreme Court, New York County last June that denied the defendant’s motion to compel access by a third-party data mining company to plaintiff’s devices, email accounts, and social media accounts, so as to obtain photographs and other evidence of plaintiff engaging in physical activities and granted the defendant’s motion.
  • In the case In Re the Paternity of B.J.M., Appeal No. 2017AP2132 (Wis. App. Feb. 20, 2019), the Court of Appeals of Wisconsin, concluding that “the circuit court’s undisclosed ESM connection with a current litigant in this case {by accepting a Facebook “friend” request from the litigant} created a great risk of actual bias, resulting in the appearance of partiality”, reversed and remanded the case for further proceedings before a different judge.

Fifth Amendment and Passwords: Are mobile device passwords protected by the Fifth Amendment?  See below.

  • In Commonwealth v. Jones, SJC-12564 (Mass. Mar. 6, 2019), 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.

Discovery vs. Dismissal Motions: Should discovery be stayed until a motion to dismiss is decided?  See below.

Case Strategy vs. Sanctions: Would a party actually object to having a claim against it dismissed to keep alive the possibility of sanctions against the opposing party?  See below.

Mobile Device Discovery and Sanctions: How often are we seeing cases involving spoliation of mobile device data?  And, how difficult is it to obtain significant sanctions in those cases?  See below.

  • In DriveTime Car Sales Company, LLC v. Pettigrew, No.: 2:17-cv-371 (S.D. Ohio Apr. 18, 2019), 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.”
  • In NuVasive, Inc. v. Kormanis, No. 1:18CV282 (M.D.N.C. Mar. 13, 2019), 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’”.
  • In Paisley Park Enter., Inc. v. Boxill, No. 17-cv-1212 (WMW/TNL), (D. Minn. Mar. 5, 2019), 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.
  • In Legaltech® News, David Horrigan discusses the case 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) and turned on the availability of a mobile device.

Bonus Case! In Marshall v. Brown’s IA, LLC, No. 2588 EDA 2017 (Pa. Super. Mar. 27, 2019), the Superior Court of Pennsylvania, ruling that the trial court “abused its discretion in refusing the charge” of an adverse inference sanction against the defendant for failing to preserve several hours of video related to a slip and fall accident, vacated the judgment issued by the jury within the trial court for the defendant and remanded the case for a new trial.

So, what do you think?  Are you attending ILTACON this year?  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.