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Another Social Media Discovery Request Ruled Overbroad – eDiscovery Case Law

As was the case in Mailhoit v. Home Depot previously, Ohio Magistrate Judge Mark R. Abel ruled in Howell v. The Buckeye Ranch, Case No. 2:11-cv-1014 (S. D. Ohio Oct. 1, 2012) that the defendant’s request (to compel the plaintiff to provide her user names and passwords for each of the social media sites she uses) was overbroad.

Background on Defendant’s Request

In this employment discrimination action where the plaintiff alleged that male supervisors, senior youth leaders, and coworkers sexually harassed her, the defendant filed a Motion to Compel in August to compel the plaintiff to give them her user names and passwords for each of the social media sites she uses.  The defendant contended that information on the plaintiff’s social media sites “may be relevant to (1) whether the alleged sexual acts occurred and (2) her present emotional state”, indicating their belief that the plaintiff “is not currently impaired by serious emotional distress and is enjoying life”.

The plaintiff contended that the defendant’s discovery request was “overbroad and unduly burdensome” and that the defendant had “offered no evidence or other reason to back up” their speculation that there might be relevant information in the private sections of her social media sites.  The defendant countered that the plaintiff testified as to several impacts of the alleged sexual harassment and that she cannot regularly update her Facebook account, yet her Facebook public pages contained evidence that the plaintiff still regularly updates her account.

Judge Abel’s Ruling

Judge Abel acknowledged that “[r]elevant information in the private section of a social media account is discoverable”, but that “a litigant has no right to serve overbroad discovery requests that seek irrelevant information”.  Comparing the request of electronic social media data to that of hard copy documents, Judge Abel stated:

“The fact that the information defendants seek is in an electronic file as opposed to a file cabinet does not give them the right to rummage through the entire file. The same rules that govern the discovery of information in hard copy documents apply to electronic files. Defendants are free to serve interrogatories and document requests that seek information from the accounts that is relevant to the claims and defenses in this lawsuit. Plaintiff’s counsel can then access the private sections of Howell’s social media accounts and provide the information and documents responsive to the discovery requests.”

Judge Abel did note that the plaintiff “remains under an obligation to preserve all the information” in her social media accounts, so the defendants would presumably be able to access that information through requests for specific relevant information.

So, what do you think?  How does this case compare to other cases (such as these three cases) where user names and passwords to social media sites were granted?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Does This Scare You? – eDiscovery Horrors!

Today is Halloween.  While we could try to “scare” you with the traditional “frights”, we’re an eDiscovery blog, so every year we try to “scare” you in a different way instead.  Does this scare you?

The defendant had been previously sanctioned $500,000 ($475,000 to the plaintiff and $25,000 to the court) and held in contempt of court by the magistrate judge for spoliation, who also recommended an adverse inference instruction be issued at trial.  The defendant appealed to the district court, where Minnesota District Judge John Tunheim increased the award to the plaintiff to $600,000.  Oops!

What about this?

Even though the litigation hold letter from April 2008 was sent to the primary custodians, at least one principal was determined to have actively deleted relevant emails. Additionally, the plaintiffs made no effort to suspend the automatic destruction policy of emails, so emails that were deleted could not be recovered.  Ultimately, the court found that 9 of 14 key custodians had deleted relevant documents. After the defendants raised its spoliation concerns with the court, the plaintiffs continued to delete relevant information, including decommissioning and discarding an email server without preserving any of the relevant ESI.  As a result, the New York Supreme Court imposed the severest of sanctions against the plaintiffs for spoliation of evidence – dismissal of their $20 million case.

Or this?

For most organizations, information volume doubles every 18-24 months and 90% of the data in the world has been created in the last two years. In a typical company in 2011, storing that data consumed about 10% of the IT budget. At a growth rate of 40% (even as storage unit costs decline), storing this data will consume over 20% of the typical IT budget by 2014.

How about this?

There “was stunned silence by all attorneys in the court room after that order. It looks like neither side saw it coming.”

Or maybe this?

If you have deleted any of your photos from Facebook in the past three years, you may be surprised to find that they are probably still on the company’s servers.

Scary, huh?  If the possibility of sanctions, exponential data growth and judges ordering parties to perform predictive coding keep you awake at night, then the folks at eDiscovery Daily will do our best to provide useful information and best practices to enable you to relax and sleep soundly, even on Halloween!

Then again, if the expense, difficulty and risk of processing and loading up to 100 GB of data into an eDiscovery review application that you’ve never used before terrifies you, maybe you should check this out.

Of course, if you seriously want to get into the spirit of Halloween, click here.  This will really terrify you!

Those of you who are really mortified that the next post in Jane Gennarelli’s “Litigation 101” series won’t run this week, fear not – it will run tomorrow.

What do you think?  Is there a particular eDiscovery issue that scares you?  Please share your comments and let us know if you’d like more information on a particular topic.

Happy Halloween!

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

Russell Taber: eDiscovery in Tennessee – eDiscovery Trends

We spend a lot of time discussing and referencing the Federal Rules of Civil Procedure, especially the changes adopted in 2006 to address handling of electronically stored information (ESI).  But, not all cases are Federal jurisdiction cases.  Many are state cases and each state (well, most of them anyway) have their own rules regarding eDiscovery.  One of those states is Tennessee.  Now, for those who practice law in Tennessee and need to address eDiscovery issues, there is a new book available to provide guidance in addressing those issues.

Electronic Discovery in Tennessee: Rules, Case Law and Distinctions was written by W. Russell Taber III.  Russell is an attorney with Riley Warnock & Jacobson, PLC, in Nashville, Tennessee.  His practice focuses on business litigation.  He is a member of The Sedona Conference® Working Group 1 and is a founding member of The Prometheus Project (The Nashville Chapter of Friends of EDiscovery).  Russell has a J.D. from Vanderbilt Law School and a B.A. from Georgetown University.  I recently interviewed Russell regarding the book and asked him several questions about the book and about eDiscovery in Tennessee in general.

Why did you decide to write the book and what are you hoping for readers to learn from reading it?

First of all, thank you for the eDiscovery Daily Blog.  I’ve been a subscriber for some time and have benefitted from its insights.  Thank you also for taking the time for this interview.

I wrote the book as a resource for Tennessee attorneys and legal professionals to use in confronting eDiscovery issues.  It begins with the premise: “The era of paper discovery in Tennessee is over.”  Though perhaps an unimaginative allusion to a famous political line during an election year, I believe the statement is true.   Virtually all information is created electronically.  EDiscovery simply cannot be ignored in Tennessee state or Federal cases, large or small.  Even so, eDiscovery can be very challenging, and the stakes can be high.  Since the most widely discussed cases in the field and at CLE’s often stem from large metropolitan centers in other states, it has been an open question whether that law does or should apply in Tennessee.   Before my book, there was no comprehensive resource that sought to address this issue, which I think is an important consideration in much Tennessee litigation.

As I understand it, the Tennessee Rules of Civil Procedure were amended to address discovery of ESI in 2009?  How do the Tennessee rules compare and contrast to the Federal Rules adopted in 2006?

That’s right.   The 2009 amendments to the Tennessee Rules were patterned largely after the “new” 2006 amendments to the Federal Rules but differ in some respects.   For instance, unlike the Federal Rules, the Tennessee Rules do not have a “meet and confer” requirement but do encourage parties to meet and confer if ESI is likely to be at issue.  The verdict is still out on what impact this distinction has in practice and on how parties cooperate on eDiscovery.

Another distinction is a rule that compliments the Tennessee state equivalent of Fed. R. Civ. P. 26(b)(2)(C)(iii) and perhaps places additional emphasis on proportionality in Tennessee state court.  Under the Tennessee rule, a judge first determines whether the ESI is subject to production.  If so, the judge then weighs the benefits to the requesting party against the burden and expense of the discovery for the responding party, considering thirteen non-exclusive factors.

Are there a couple of notable Tennessee cases that you can mention that were impacted by the Tennessee rules or by eDiscovery in general?

Yes.  While the degree of culpability that should be required to impose spoliation sanctions has been debated nationally, Tennessee state courts generally have not awarded spoliation sanctions absent destruction of evidence for an improper purpose.  In Bellsouth Advertising & Publishing Corp. v. Abebe, the Tennessee Court of Appeals applied this general rule in declining to impose sanctions for a party’s destruction of original documentation pursuant to its document retention practices.

Another notable case is CNX Gas Co., LLC v. Miller Petroleum, Inc.  The Tennessee Court of Appeals shifted all the costs (including attorneys’ fees) of collecting, reviewing and producing certain ESI to the requesting party.  The court reasoned that the requests for production, which sought ESI “with metadata,” posed an “undue burden and hardship” on the responding party.

Are there any plans to amend Tennessee rules for eDiscovery in the near future?  What do you expect to see in the eDiscovery landscape within the state over the next few years?

I’m not aware of any plans to amend the Tennessee rules for eDiscovery.  A practitioner in Tennessee can be subject to four different sets of eDiscovery rules depending on whether the case is pending in Tennessee state court or in one of the three Federal judicial districts (two of which have somewhat differing local default eDiscovery rules).  I think there is a need for more uniformity in the eDiscovery rules in Tennessee.

We recently started a local eDiscovery group in Nashville (called The Prometheus Project) that is affiliated with Friends of eDiscovery.  Our initial meeting last month generated quite a bit of enthusiasm and attracted over 40 attendees.  These local groups seem to be emerging throughout the country, and I’m hopeful this trend will spread to other cities in Tennessee.

For more information about the book, including the link on Amazon.com to purchase it, click here.

Thanks, Russell, for participating in the interview!

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

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

Both Sides Instructed to Use Predictive Coding or Show Cause Why Not – eDiscovery Case Law

As reported in Ralph Losey’s e-Discovery Team® blog, Vice Chancellor J. Travis Laster in Delaware Chancery Court – in EORHB, Inc., et al v. HOA Holdings, LLC, C.A. No. 7409-VCL (Del. Ch. Oct. 15, 2012) – has issued a “surprise” bench order requiring both sides to use predictive coding and to use the same vendor.

As Ralph notes, this “appears to be the first time a judge has required both sides of a dispute to use predictive coding when neither has asked for it. It may also be the first time a judge has ordered parties to use the same vendor.”  Vice Chancellor Laster’s instruction was as follows:

“This seems to me to be an ideal non-expedited case in which the parties would benefit from using predictive coding.  I would like you all, if you do not want to use predictive coding, to show cause why this is not a case where predictive coding is the way to go.

I would like you all to talk about a single discovery provider that could be used to warehouse both sides’ documents to be your single vendor.  Pick one of these wonderful discovery super powers that is able to maintain the integrity of both side’s documents and insure that no one can access the other side’s information.  If you cannot agree on a suitable discovery vendor, you can submit names to me and I will pick one for you.

One thing I don’t want to do – one of the nice things about most of these situations is once people get to the indemnification realm, particularly if you get the business guys involved, they have some interest in working out a number and moving on.  The problem is that these types of indemnification claims can generate a huge amount of documents.  That’s why I would really encourage you all, instead of burning lots of hours with people reviewing, it seems to me this is the type of non-expedited case where we could all benefit from some new technology use.”

Ralph notes that there “was stunned silence by all attorneys in the court room after that order. It looks like neither side saw it coming.”  It will be interesting to see if either, or both party, proceeds to object and attempt to “show cause” as to why they shouldn’t use predictive coding.

So, what do you think?  Is this an isolated case or the start of a trend?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Proportionality Rules! (and other proportionality sources) – eDiscovery Best Practices

I found this nice summary of Federal Rules of Civil Procedure and other sources that address proportionality and cooperation in eDiscovery from the Baker Hostetler blog, Discovery Advocate, written by Gil Keteltas entitled Advocating Proportionality? Start with the Rules!  Here are the highlights.

As the author notes, Rules 1, 26 and 37 each provide verbiage addressing proportionality, as follows:

  • Rule 1 states that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”
  • In Rule 26(a)(1) disclosures, a party must describe  by category and location all electronically stored information in the party’s possession, custody or control  “that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.”
  • Rule 26(f) mandates that the parties confer and discuss “any issues about preserving discoverable information; and develop a proposed discovery plan” that indicates the “parties’ views and proposals” concerning, inter alia, issues relating to the disclosure or discovery of ESI, form of production and assertions of privilege.
  • Rule 26(g) requires certification, based on a reasonable inquiry, that Rule 26(a) disclosures were complete and that discovery requests, responses and objections are proper, necessary and reasonable given the law, nature and stage of the case.
  • Rule 37(f) authorizes sanctions for failure to make disclosures or cooperate in discovery, including for failing “to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f).”

The author also recommends two publications from the The Sedona Conference®: Its Cooperation Proclamation and its Commentary on Proportionality (previously covered on this blog here and here), as well as this proportionality test white paper from the American Bar Association.  If you want case law dealing with proportionality, take a look here, here, here, here and here.  And, that’s just this year!

With 90% of the data in the world having been created in the last two years, managing eDiscovery of all that data continues to get more and more expensive.  Key to keeping those costs in check is the ability to promote proportionality, especially through the Rule 26(f) meet and confer with opposing counsel, and with the court (especially when the parties can’t agree on conducting eDiscovery more cost effectively).  The sources listed in this article provide excellent ammunition to advocate proportionality in eDiscovery with opposing counsel as well as with the court.

So, what do you think?  Have you disputed eDiscovery scope with opposing counsel in your cases?   If so, how have you addressed those disputes?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Government Document Productions Can Be Like Water Torture – eDiscovery Case Law

In Botell v. United States, 2012 U.S. Dist. (E.D. Cal. Sept. 18, 2012), Magistrate Judge Gregory Hollows noted that the US Government’s “document production performance in these proceedings has been akin to a drop-by-drop water torture” and ordered a preclusion order prohibiting the US Government “from presenting evidence in its case that had been requested by plaintiffs in the Requests for Production, but which has not been produced” as of the date of the order.  The US was also still required to produce the documents, whether they planned to use them or not.  Judge Hollows also noted that the “Plaintiff has not waived any motion to seek further sanctions regarding non-production of documents, or spoliation of documents.”

In this wrongful death and personal injury action at Lassen Volcanic National Park when a mortared rock wall gave way killing one child and injuring another, the US Government produced over 7,000 pages of documents, yet, it was noted that “there is a glaring lack of production of emails from defendant’s agents and employees” with emails having only been produced from one custodian.  As five other custodians were referenced in the produced emails, the plaintiffs contended that emails should have been produced from them as well.  With regard to the back up of emails, one of the defendant declarations described the backup policy as follows: “[b]ack-up emails are retained for 30 days only, unless they are subject to a litigation hold notice or pertain to the BP Gulf Oil spill.”

Judge Hollows ordered the defendants to provide a declaration describing “searches conducted to locate physical and electronic copies of emails” responsive to production requests, noting the declaration “shall state the steps taken to locate these emails, whether any such emails exist, and if not, a definitive statement that they no longer exist. If further responsive documents are located, they shall be produced at the time declarations are filed.”

Summarizing the production issue in his order, Judge Hollows noted as follows:

“At this juncture, the United States has purportedly been looking for documents for months, yet the undersigned, to the date of the hearing, does not have confidence that an organized, thorough search has been performed. Rather, defendant’s document production performance in these proceedings has been akin to a drop-by-drop water torture. At some point, plaintiff must be protected from the United States’ further belated production of pertinent documents.”

As a result, Judge Hollows issued the preclusion order, with the possibility of more sanctions to come.

So, what do you think?  Was the ruling harsh enough?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Cloning of Computer Files: When There’s a Will, There’s a Way – eDiscovery Case Law

In Matter of Tilimbo, No. 329/M-2007, 2012 N.Y. Misc. (Surr. Ct., Bronx Cnty. Aug. 22, 2012), a court held it was permissible to order cloning of computer files where doing so did not place an unreasonable burden on a nonparty, appropriate steps were taken to protect any privileged information, and the nonparty had not previously produced the requested information in hard copy.

In this claim based on a will contest, the plaintiffs moved for an order permitting their computer forensic expert to examine the personal computer hard drive of a nonparty witness, the deceased’s attorney Patrick Wynne, limited to finding and reviewing documents related to Rose Tilimbo, her will, as well as a deed transfer from her to Salvatore Tilimbo that formed the basis of the will contest. Wynne objected on the basis that he had already, at the court’s direction, been deposed on the subject and “provided an affirmation stating that he conducted the requisite diligent search of his ‘computer files and any other [additional] relevant files’ and did not find responsive documents or computer files.” He argued that “a balancing of the sanctity of the attorney-client privilege against the scope of permissible discovery warrant[ed] the denial of the motion.”

Noting that ESI of a nonparty is discoverable, the court held that so long as it did not place an unreasonable burden on Wynne, a solo practitioner, the examination and cloning of Wynne’s computer was permissible. Although Wynne had produced in hard copy all of the documents he said he possessed, the court pointed out that such disclosures did not prevent the ESI itself from being sought. In addition, Wynne had not been able to produce any documents related to the deed transfer at issue, and any such documents that existed would clearly be material and relevant to the case. Therefore, the court offered the following parameters for the cloning:

“The court finds that the cloning would not place an unreasonable burden upon Wynne if all of the computers can be cloned at his office in four hours or less on a date and at a time that he selects, which may include in whole or in part a time after normal business hours. Alternatively, the cloning will be allowed outside of Wynne’s office if it can be done by removing the computer(s) on a Saturday at any time selected by Wynne and returned to his office by Monday between 8:30 and 9:00 a.m. If Wynne prefers, the computer(s) may be removed from his office on any other day, provided the computer(s) are returned to his office within 24 hours. If the cloning is to be done outside of Wynne’s office and more than one computer is to be cloned, then at Wynne’s option, only one computer may be removed from his office at a time. In the event that the cloning can be accomplished within the time allocated herein either at Wynne’s office or by removal of the computer(s), Wynne shall have the right to select whether or not he wants the cloning to be done at his office. In the event that the cloning requested by the movants cannot be performed within the time frame provided herein, the court finds that the disruption to Wynn’s practice of law outweighs the benefits that the movants might obtain from the information provided by the cloning. Furthermore, should a computer be removed from Wynne’s office and not returned within the time provided herein, the movants shall pay Wynne $200 for each hour or part thereof that the return is delayed.”

In addition, the forensic analysts were limited to locating documents likely to lead to discoverable evidence related to the decedent and were given specific instructions on what to do with any unrelated documents that were accidentally uncovered.

So, what do you think?  Should cloning of the computer have been allowed?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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

Defendant Appeals Sanctions, Only to See Sanction Amount Raised on Appeal – eDiscovery Case Law
 

In Multifeeder Tech. Inc. v. British Confectionery Co. Ltd., No. 09-1090 (JRT/TNL), (D. Minn. Sept. 18, 2012), the defendant had been previously sanctioned $500,000 ($475,000 to the plaintiff and $25,000 to the court) and held in contempt of court by the magistrate judge for spoliation, who also recommended an adverse inference instruction be issued at trial.  The defendant appealed to the district court, where Minnesota District Judge John Tunheim increased the award to the plaintiff to $600,000.  Oops!

Background

In this breach of contract case, the magistrate court granted the plaintiff’s motion in 2010 to compel discovery of several specific document requests after the defendants failed to comply with those requests.  After the defendant had still failed to comply six months later, the plaintiff motioned the court for sanctions due to the defendant’s failure to comply with the court’s previous 2010 order. While granting the plaintiff’s motion for sanctions, the magistrate judge also ordered that the parties try to cooperate to agree on the handling of eDiscovery in the case. Failing an agreement, each side would then be permitted to submit a proposal for the court to use to establish an eDiscovery protocol.

Forensic Examination of Defendant’s Computers

When the parties could not come to an agreement, they did so, and the court chose the plaintiff’s proposal, appointing a computer forensic expert to image and examine the defendant’s computers, allocating the forensic discovery costs between the parties.  The forensic examination identified several occurrences of spoliation by the defendant, including commercial wiping software found on one custodian’s computer with “six deletions occurring after both the commencement of the lawsuit and issuance of the ESI Protocol Order” and concealment of an encrypted volume and deletion of a PST file by a vice president of the company.

Sanctions Ordered by Magistrate Court

After reviewing the facts and sanctions at the Court's disposal, the Magistrate Judge recommended that:

(1)   An adverse inference instruction be given with regard to the defendant’s destruction of evidence;

(2)   The defendant be held in civil contempt, and ordered to pay $25,000 to the Court and $475,000 to the plaintiff.  With regard to the $475,000, the Court found that amount to constitute reasonable expenses under Fed. R. Civ. P. 37(b)(2)(C) because "it encompasses much of CFS's current unpaid invoices, some past paid amounts by Multifeeder to CFS, and reasonable legal fees and costs for litigating this discovery debacle."

Both Parties Object to Sanction Amount

The defendant objected with regard to the finding of spoliation by the two individuals, objected that the $475,000 sanction was too high because the plaintiff was partly responsible for the “massive” costs for the forensic examination and appealed to the district court.  In turn, the plaintiff also objected to the sanction amount, indicating that the “award fails to adequately cover the reasonable expenses it incurred as a result of [the defendant’s] conduct” and asked that the total amount be raised to over $692,000.

Sanction Amount is Increased, not Decreased

Judge Tunheim upheld the finding of spoliation against the two individuals.  With regard to the sanction amount, Judge Tunheim noted that “the recommended $475,000 sanction is insufficient” and found as follows:

“The Court has also considered that this is not the first sanctions order in this case; British's repeated violations of the Court's discovery orders warrant significant sanctions to deter British from further misconduct. Therefore, the Court finds that a sanction of $600,000 represents reasonable expenses and attorneys' fees because it encompasses much of CFS's current unpaid invoices, at least some past paid amounts by Multifeeder to CFS, and reasonable legal fees and expenses in litigating this discovery dispute.” [emphasis added]

Judge Tunheim also ordered the defendant to pay “half of the sanctions award, $300,000, within 90 days of the date of this Order. The second half of the sanctions award will be payable no later than 120 days of the date of this Order.”

So, what do you think?  Should the defendant appeal again or quit before they get further behind?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Sanctions Can Happen in Police Brutality Cases Too – eDiscovery Case Law
 

As reported in the Seattle Times, Pierce County (Washington) Superior Court Judge Stephanie Arend issued a $300,000 sanction against King County for failure to produce key documents illustrating the previous troubling behavior of a sheriff deputy who tackled Christopher Sean Harris and left him permanently brain-damaged.  Judge Arend also indicated that the county would be liable for attorneys' fees and possibly compensatory damages for the Harris family.  This after King County had settled with the Harris family for $10 million in January 2011 during a civil trial in King County Superior Court.

After being wrongly identified as a suspect in an earlier bar fight, Harris was tackled and pushed into a wall by Deputy Matthew Paul in Seattle's Belltown neighborhood in May 2009 and left brain-damaged, paralyzed and unable to speak. After reaching a settlement during the civil trial, Harris' attorneys claimed the Sheriff's Office and county withheld emails and other documents that outlined internal concerns about unnecessary or excessive force used by Paul in other incidents. They filed a motion at the end of last year asking Arend to sanction the county and order it to pay an additional $3.3 million.

Documents alleged by Harris’ attorneys to have been intentionally withheld by the King County Sheriff’s office include:

  • A thread of emails to Paul's supervisor about his behavior at the Basic Law Enforcement Academy, where concerns were raised about Paul having "exhibited behaviors that were a concern" and had used force that was "far above the norm" when working with a smaller female trainee.  While the county indicated that a search failed to locate these emails, Judge Arend, in the ruling, noted that "any competent electronic discovery effort would have located this email."
  • There was also a citizen complaint against Paul in May 2010 after a Seattle resident stopped to videotape Paul and other deputies deal with an intoxicated person and the resident was tackled by Paul and suffered a broken nose.  The resident has filed a federal civil-rights lawsuit against Paul and the county.
  • There were also documents about another use-of-force incident that was not put into Paul’s personnel file until the Harris’ case was settled.

"This reckless indifference in its failure to produce these three documents — documents that were indisputably relevant — is the functional equivalent of intentional misconduct," Judge Arend noted, calling the county’s failure to produce these documents as “reprehensible”.

Because the family would have filed a civil-rights lawsuit if they had known about these other instances, Judge Arend said she will decide about further damages after a hearing for Harris' attorneys to attempt to show that they would have prevailed in a civil-rights case with the additional documents.

Amazingly, Paul remains on the force.

So, what do you think?  Was the sanction severe enough?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Twitter Turns Over Tweets in People v. Harris – eDiscovery Case Law

As reported by Reuters, Twitter has turned over Tweets and Twitter account user information for Malcolm Harris in People v. Harris, after their motion for a stay of enforcement was denied by the Appellate Division, First Department in New York and they faced a finding of contempt for not turning over the information.  Twitter surrendered an “inch-high stack of paper inside a mailing envelope” to Manhattan Criminal Court Judge Matthew Sciarrino, which will remain under seal while a request for a stay by Harris is heard in a higher court.

Back in April, Harris, an Occupy Wall Street activist facing criminal charges, tried to quash a subpoena seeking production of his Tweets and his Twitter account user information in his New York criminal case.  That request was rejected, so Twitter then sought to quash the subpoena themselves, claiming that the order to produce the information imposed an “undue burden” on Twitter and even forced it to “violate federal law”.

Then, on June 30, Judge Sciarrino ruled that Twitter must produce tweets and user information of Harris, noting: “If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist…Those private dialogues would require a warrant based on probable cause in order to access the relevant information.”  Judge Sciarrino indicated that his decision was “partially based on Twitter’s then terms of service agreement”, which was subsequently modified to add the statement “You Retain Your Right To Any Content You Submit, Post Or Display On Or Through The Service.”

Twitter filed an appeal of the trial court’s decision in with the Appellate Division, First Department in New York, but, unfortunately for Twitter, it didn’t take long for the appellate court panel to rule, as they denied Twitter’s motion for a stay of enforcement of the Trial Court’s order to produce Malcolm Harris’s tweets.  Twitter was ultimately given a deadline by the Trial Court during a hearing on the District Attorney’s motion (for Twitter to show cause as to why they should not be held in contempt for failure to produce the tweets) to produce Harris’s information by Friday September 14 or face a finding of contempt. Judge Sciarrino even went so far as to warn Twitter that he would review their most recent quarterly financial statements in determining the appropriate financial penalty if Twitter did not obey the order.  Now they have, though the information has been kept under seal (at least for now).

As the Reuters article notes, “The case has drawn interest from privacy advocates, including the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU), which have filed an amicus brief in support of Twitter’s appeal.  They are concerned the ruling could set a precedent putting the onus on social media companies to try to protect their users from criminal prosecution.”

So, what do you think?  Will the stay be denied or will the information remain under seal?  Please share any comments you might have or if you’d like to know more about a particular topic.

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