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Case Law

eDiscovery Case Law: Plaintiff Compelled to Produce Mirror Image of Drives Despite Defendant’s Initial Failure to Request Metadata
 

In Commercial Law Corp., P.C. v. FDIC, No. 10-13275, 2012 U.S. Dist. LEXIS 51437 (E.D. Mich. Apr. 12, 2012), Michigan District Judge Sean F. Cox ruled that a party can be compelled to produce a mirror image of its computer drives using a neutral third-party expert where metadata is relevant and the circumstances dictate it, even though the requesting party initially failed to request that metadata and specify the format of documents in its first discovery request.

The plaintiff was an attorney who sought to recover fees from the FDIC for services in its capacity as receiver for a bank. The plaintiff claimed that it held valid liens on properties of the bank, and provided an eMail to the bank as evidence. The FDIC disputed the plaintiff’s claim, contended that she was lying and sought to compel her to produce a mirror image of her computer drives to examine relevant data pertaining to the lien documents. Magistrate Judge R. Steven Whalen ordered the plaintiff to compel, and the plaintiff objected.

Judge Cox ruled that there was a proper basis for ordering an exact copy of her drives to be created and also agreed that it was appropriate to be performed by a neutral third-party expert, finding:

  • That such an examination would reveal relevant information pursuant to Rule 26 because “[t]he date Plaintiff executed the security lien is clearly relevant to a defense against Plaintiff’s attorney lien claim”;
  • That there were a number of factors that gave the defendant “sufficient cause for concern” as to the authenticity of the lien documents, shooting down the plaintiff’s claim that the court was simply following a “hunch”;
  • That a third-party expert is an appropriate way to execute the examination.

Despite the fact that the defendant did not request metadata nor specify the format of the documents in its initial discovery request, Judge Cox permitted an expert to obtain relevant metadata. Judge Cox noted:

“It is clear from the parties’ pleadings that Defendant’s concern regarding the legitimacy of the lien documents intensified during the course of discovery. Specifically, Defendant did not obtain the January 18, 2010 email [claiming the lien documents were attached] until it deposed Karl Haiser in August of 2011, well after it submitted its first discovery requests to Plaintiff. “

As a result, the plaintiff’s objections to the Magistrate Judge Whalen’s order were overruled.

So, what do you think?  Should the defendant have been granted another opportunity at the metadata or should the plaintiff’s objections have been 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.

eDiscovery Case Law: Privilege Waived Because Defendants Failed to Notice “Something Had Gone Awry” with Their Production
 

In D’Onofrio v. Borough of Seaside Park, No. 09-6220 (AET), (D.N.J. May 30, 2012), New Jersey Magistrate Judge Tonianne Bongiovanni denied the defendants’ motion for discovery to reclaim privileged documents that were inadvertently produced, finding that privilege was waived because the defendants failed to take reasonable measures to rectify the disclosure. 

During the course of discovery in a case where the plaintiff alleged the defendants engaged in conduct that violated the plaintiff’s constitutional and statutory rights, the defendants reviewed 14 boxes of documents for possible production to the plaintiff. Six of those boxes, the “Ryan/McKenna” boxes, were reviewed by a partner at the law firm representing the defendants. The partner marked certain documents as privileged and then instructed a clerical employee to separate privileged and non-privileged documents, to Bates stamp the separated documents, and to burn the non-privileged documents onto a disc for production. The clerical employee failed to follow instructions, and privileged documents were inadvertently produced. 

Despite subsequent events where the defendants could have discovered the mistake, the defendants remained unaware of the accidental disclosure for approximately eight months until the plaintiff attached some of the privileged documents to an exhibit of his brief on an unrelated matter. The intervening events where the defendant failed to notice the production of privileged documents included the following: (1) the defendants voluntarily recalled the disc to reorganize the documents and remove electronic comments inadvertently left on some documents, and then resubmitted the disc to the plaintiff; (2) the defendants again recalled the disc after the plaintiff informed them the new disc was unreadable, and, after a clerical employee performed a “quality control audit” on the disc to ensure the defendants were producing the same set of documents, the defendants again produced the disc; (3) the defendants created a privilege log but did not realize the number of documents for the Ryan/McKenna boxes marked privileged was too small; and (4) after the plaintiff informed them that some of the documents on another disc were out of order, the defendants discovered hundreds of privileged documents from the “borough” boxes, another set of boxes, had been accidentally produced, but the defendants did not re-review the Ryan/McKenna documents that were produced.

Judge Bongiovanni articulated the applicable standard of review under Federal Rule of Evidence 502(b), stating that the factors to be considered in determining whether a waiver occurred are: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to rectify the disclosure; and (5) whether the overriding interests of justice would or would not be served by relieving the party of its error.

Judge Bongiovanni had no trouble finding that the defendants “initially” took reasonable precautions to prevent production of privileged documents by devoting sufficient time to review, having a partner personally review all of the Ryan/McKenna documents, delegating to a clerical employee the task of separating privileged and non-privileged documents, and even by reviewing the disc before producing it to the plaintiff.

She then noted that the number and extent of the defendant’s unintentional disclosures were “neutral.”

Turning to the defendants’ efforts to rectify the disclosure, however, Judge Bongiovanni concluded that the defendants “did not take reasonable steps to remedy their error.” She stated, “Defendants should have been aware that something was amiss with their document production long before Plaintiff relied on three privileged documents” in his brief. Furthermore, although the defendants were not obligated to “engage in a post-production review to determine whether any protected communication or information [was] produced by mistake,” once a party is “‘on notice that something [i]s amiss with its document production and privilege review,’ then that party has an obligation to ‘promptly re-assess its procedures and re-check its production.’” The court pointed out that “the combination of the inadvertently produced attorney electronic comments and 728 pages of privileged Borough documents should have put the [ ] Defendants on notice that something had gone profoundly awry with their document production and privilege review.” A “reasonable person” would have rechecked the disc containing the Ryan/McKenna documents, and yet the defendants failed to do so.

Finally, the court also found that the interests of justice favored finding that a waiver occurred because the defendants’ “negligence” led to the inadvertent disclosure of privileged information.

So, what do you think?  Was the ruling fair?  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.

eDiscovery Best Practices: Smoking Gun Shoots Blanks, Google Wins Latest Battle in “Smartphone War” with Oracle
 

Despite a significant inadvertent disclosure of information during Google's litigation with Oracle Corp., U.S. District Judge William Alsup last Thursday (May 31) dismissed claims that its Android mobile phone platform infringes Oracle's copyrights relating to the Java computer language.

Oracle had accused Google of infringing the "structure, sequence and organization" of 37 of Java's application programming interface (API) application. Referring to this case as “the first of the so-called smartphone war cases”, Alsup ruled in the 41-page decision that the particular Java elements Google replicated were free for all to use under copyright law, noting: "So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API". 

Summarizing the validity of Oracle’s claim, Judge Alsup stated:

“Of the 166 Java packages, 129 were not violated in any way.  Of the 37 accused, 97 percent of the Android lines were new from Google and the remaining three percent were freely replicable under the merger and names doctrines.  Oracle must resort, therefore, to claiming that it owns, by copyright, the exclusive right to any and all possible implementations of the taxonomy-like command structure for the 166 packages and/or any subpart thereof – even though it copyrighted only one implementation.  To accept Oracle’s claim would be to allow anyone to copyright one version of code to carry out a system of commands and thereby bar all others from writing their own different versions to carry out all or part of the same commands.  No holding has ever endorsed such a sweeping proposition.”

Judge Alsup indicated that he was not ruling that Java API packages are free for all to use, stating: “This order does not hold that Java API packages are free for all to use without license.  It does not hold that the structure, sequence, and organization of all computer programs may be stolen. Rather, it holds on the specific facts of this case, the particular elements replicated by Google were free for all to use under the Copyright Act.”

Oracle filed suit against Google in San Francisco federal court in August 2011 claiming that the Android mobile operating system infringed Java copyrights and patents (to which Oracle obtained the rights after acquiring Sun Microsystems in 2010) and once valued damages in the case at $6 billion. In the first phase of the trial, the jury returned a verdict that said Google infringed the structure, sequence, and organization of 37 API packages; however, they deadlocked on Google's affirmative defense that it only made fair use of Java technology and Alsup had not yet ruled on whether the APIs could be copyrighted.  He has now.

Oracle is expected to appeal.

So, what do you think?  Will Oracle appeal and should they do so?  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 Case Law: Court Allows Third Party Discovery Because Defendant is an “Unreliable Source”
 

Repeatedly referring to the defendant’s unreliability and untrustworthiness in discovery and “desire to suppress the truth,” Nebraska Magistrate Judge Cheryl R. Zwart found, in Peter Kiewit Sons’, Inc. v. Wall Street Equity Group, Inc., No. 8:10CV365, (D. Neb. May 18, 2012), that the defendant avoided responding substantively to the plaintiff’s discovery requests through a pattern of destruction and misrepresentation and therefore monetary sanctions and an adverse jury instruction at trial were appropriate. 

In this trademark action, Judge Zwart awarded sanctions of extensive discovery costs against a defendant that destroyed discoverable electronic evidence, failed to search for and locate other electronically stored information (ESI), and made false representations in affidavits and in court regarding its efforts to search for this evidence. In addition, she allowed the plaintiff to conduct discovery by contacting directly the defendant’s current and former clients, despite the court’s acknowledgment that such contact could harm the defendant’s business. Finally, Judge Zwart recommended an adverse jury instruction be given at trial.

Throughout a lengthy and contentious discovery process, the defendant claimed that its failure to produce any electronic documents containing the plaintiff’s mark demonstrated that there simply were no such documents. What the court ultimately discovered, however, was that no documents were produced for very different reasons: (1) the defendant appeared to have a virtually nonexistent records retention policy; (2) the defendant recovered its external hard drives from its landlord just before the landlord received a subpoena for the hard drives, leading the landlord to claim he did not possess the files; (3) to “comply” with discovery requests, the defendant had an employee who is not a computer expert conduct a keyword search consisting of one word (“Kiewit”) of the defendant’s files (from her own workstation) for the name of the plaintiff’s mark and recovered only two nonresponsive documents; and (4) the defendant discarded what it claimed was a non-functioning server the same month that it received notice of the plaintiff’s discovery requests.

The court ordered a forensic examination of the defendants’ computer systems that revealed thousands of documents containing the keyword “Kiewit” on its face as well as in its metadata. It also revealed at least one document that had been previously produced was missing from the electronic files, contributing to the evidence of spoliation. In ruling, the court pointed out that “considering Defendant’s very liberal policy of not keeping documents, consolidating their records in one location, or organizing their files, their efforts to locate relevant electronic files were woefully inadequate.”

As a consequence of the defendants’ “obstreperous” conduct, Judge Zwart found sanctions were appropriate, including monetary awards and an adverse jury instruction. She granted sanctions pursuant to its “authority to sanction the misconduct of parties and their attorneys . . . derived from the Federal Rules of Civil Procedure and the inherent power of the court,” as well as its “power to shape the appropriate remedy including default judgment, striking pleadings, an adverse jury instruction, and an award of attorney’s fees and costs” derived from precedent. Judge Zwart noted, “The most severe sanctions are reserved for those litigants demonstrating ‘blatant disregard of the Court’s orders and discovery rules’ [and] engaging in a pattern of deceit by presenting false and misleading answers and testimony under oath in order to prevent their opponent from fairly presenting its case.’”

Furthermore, Judge Zwart found the defendants’ conduct dictated that the plaintiff should be permitted to conduct third-party discovery. The plaintiff argued that it needed to contact the defendants’ clients in an effort to determine whether and how the defendants used the plaintiff’s trademark, whereas the defendants argued that they would suffer “irreparable harm” should the plaintiff reach out to their current and former clients. Despite courts’ general reluctance to allow direct contact with litigants’ clients in intellectual property cases, Judge Zwart here found that the plaintiff showed the clients’ information was “relevant and necessary”; moreover, because “Defendants are simply not a reliable source of information” and they “continue to attempt to use client confidentiality as a means of preventing Plaintiff from discovering relevant information,” the plaintiff’s contact with the clients would be proper.

So, what do you think?  Did the court’s sanctions go far enough or should they have been even tougher?  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.

eDiscovery Case Law: Spoliation of Data Can Lead to Your Case Being Dismissed
 

In 915 Broadway Associates LLC v. Paul, Hastings, Janofsky & Walker, LLP, 34 Misc. 3d 1229A (N.Y. Sup. Ct. 2012), the New York Supreme Court imposed the severest of sanctions against the plaintiffs for spoliation of evidence – dismissal of their $20 million case.

In this case, the plaintiffs, 915 Broadway, sued its former counsel, Paul Hastings LLP, for legal malpractice. The plaintiffs were initially a party to a separate action involving a failed real estate deal, as a result of which a litigation hold letter was issued in April 2008.  When that action was settled, the plaintiffs brought this malpractice suit against its former attorneys in August of 2008, alleging that the defendants failed to adequately instruct them during contract negotiations with a third party to draw on a $20 million line of credit before it expired.

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 served without preserving any of the relevant ESI.

Citing Zubulake, the court held that “once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold” as the standard for adequate preservation. To implement a sufficient legal hold, a party must also ensure that affirmative steps are taken identify and preserve potentially relevant ESI and oversee organizational compliance with the legal hold.

To establish sanctions, the court noted: “[T]he party seeking sanctions must establish that (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a "culpable state of mind"; and (3) the destroyed evidence was "relevant" to the moving party's claim or defense”.

In this case, the court found that:

  1. Joel Poretsky (the principal Australian representative of TRAK Associates, LLC (TRAK), an entity that owns more than 31% of 915 Broadway), “actively” deleted electronic documents related to the transaction “by his own admission”;
  2. The documents were destroyed with a "culpable state of mind" because “they were deleted intentionally and then permanently destroyed beyond any possible recovery either intentionally, or as the result of gross negligence”; and
  3. The evidence destroyed by Poretsky was “likely relevant to Paul Hastings' claims that (1) 915 Broadway and its managing members bore some, if not all, of the responsibility for monitoring the Letter of Credit's expiration date…and (2) 915 Broadway failed to mitigate its damages and voluntarily broke the chain of causation by settling with Normandy for nothing without any investigation”.

As a result, the court granted the defendants’ motion to dismiss the case and also awarded reimbursement of its attorney's fees and costs incurred in filing the motion.

So, what do you think?  Was case dismissal appropriate or was it too harsh a sanction?  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 Case Law: Inadvertent Disclosure By Expert Waives Privilege
 

In Ceglia v. Zuckerberg, No. 10-CV-00569A(F), (W.D.N.Y. Apr. 19, 2012) (the case where Paul Ceglia is suing claiming 84% ownership of Facebook due to an alleged agreement he had with Mark Zuckerberg back in 2003), New York Magistrate Judge Leslie G. Foschio ruled that an information technology expert’s inadvertent disclosure waived the attorney-client privilege where the plaintiff could not show that it (1) took reasonable steps to prevent the disclosure of the e-mail and (2) took reasonable steps to rectify the error once it discovered the disclosure.

This case involved a dispute over the authenticity of a contract, and in seeking assistance to resolve pretrial matters, the plaintiff filed this motion to compel and asserted, among other things, that the attorney-client privilege should protect an e-mail that was inadvertently disclosed to the defendants. The court set forth the standard under Federal Evidence Rule 502(b) that applies to whether an inadvertent disclosure waives a privilege: “the privilege will not be waived if (1) the disclosure is inadvertent; (2) the privilege holder took reasonable steps to prevent disclosure; and (3) the privilege holder took reasonable steps to rectify the error.” Furthermore, “‘the burden is on the party claiming a communication is privileged” to establish that it met these requirements and that “the opposing party will not be unduly prejudiced by a protective order.”

Because the plaintiff failed to “personally supervise” the actions of the information technology expert he had hired, despite that he understandably hired such an expert to assist him while he was out of town, he “also failed to take reasonable steps to prevent the inadvertent disclosure” of the e-mail. Judge Foschio suggested that instead the defendants could have had the expert “first forward any documents” so that the plaintiff “could have reviewed the documents to ensure there w[ere] no extraneous, privileged materials attached.” If the plaintiff needed to oversee the expert in person, the court admonished, he “should have made himself present to do so.”

Judge Foschio also found that the plaintiff did not take reasonable steps to rectify the inadvertent disclosure. Noting that “the delay in seeking to remedy an inadvertent disclosure of privileged material is measured from the date the holder of the privilege discovers [ ] such disclosure,” and that “[g]enerally, a request for the return or destruction of inadvertently produced privileged materials within days after learning of the disclosure is required to sustain this second element,” the court pointed out that the plaintiff not only waited more than two months to try to rectify the error but also offered no explanation for such a lengthy delay.

Moreover, Judge Foschio stated, “Plaintiff has utterly failed to offer any explanation demonstrating that protecting belated protection of the . . . email will not be unduly prejudicial to Defendants.” Thus, because the plaintiff failed to establish any elements of the test required under the evidentiary rules, any privilege that may have attached to the disputed e-mail was waived.

Case Summary Source: Applied Discovery (free subscription required).

So, what do you think?  Should privilege have been waived or should the plaintiffs have been granted their request for the email to be returned?  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 Trends: For Da Silva Moore Addicts
 

I am getting prepared to head for sunny Los Angeles for LegalTech West Coast shortly, so today I’m getting by with a little help from my friends.  Tomorrow and Wednesday, I’ll be covering the show.  It wouldn’t be a week in eDiscovery without some tidbits about the Da Silva Moore case, so here are some other sources of information and perspectives about the eDiscovery case of the year (so far).  But, first, let’s recap.

Several weeks ago, in Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012), Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York issued an opinion making it likely the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case.  However, on March 13, District Court Judge Andrew L. Carter, Jr. granted plaintiffs’ request to submit additional briefing on their February 22 objections to the ruling.  In that briefing (filed on March 26), the plaintiffs claimed that the protocol approved for predictive coding “risks failing to capture a staggering 65% of the relevant documents in this case” and questioned Judge Peck’s relationship with defense counsel and with the selected vendor for the case, Recommind.

Then, on April 5, Judge Peck issued an order in response to Plaintiffs’ letter requesting his recusal, directing plaintiffs to indicate whether they would file a formal motion for recusal or ask the Court to consider the letter as the motion.  On April 13, (Friday the 13th, that is), the plaintiffs did just that, by formally requesting the recusal of Judge Peck (the defendants issued a response in opposition on April 30).  But, on April 25, Judge Carter issued an opinion and order in the case, upholding Judge Peck’s opinion approving computer-assisted review.

Not done, the plaintiffs filed an objection on May 9 to Judge Peck's rejection of their request to stay discovery pending the resolution of outstanding motions and objections (including the recusal motion, which has yet to be ruled on.  Then, last Monday, Judge Peck issued a stay, stopping defendant MSLGroup's production of electronically stored information.

More News

And, there’s even more news.  As Sean Doherty of Law Technology News reports, last Monday, Judge Peck denied an amicus curiae (i.e., friend-of-the-court) brief filed in support of the plaintiffs' motion for recusal.  For more on the filing and Judge Peck’s denial of the motion, click here.

Summary of Filings

Rob Robinson of ComplexD has provided a thorough summary of filings in a single PDF file.  He provides a listing of the filings, a Scribd plug-in viewer of the file – all 1,320 pages(!), so be patient as the page takes a little time to load – and a link to download the PDF file.  The ability to search through the entire case of filings for key issues and terms is well worth it.  Thanks, Rob!

Da Silva Moore and the Role of ACEDS

Also, Sharon Nelson of the Ride The Lightning blog (and a previous thought leader interviewee on this blog) has provided a very detailed blog post regarding the in depth investigation that the Association of Certified E-Discovery Specialists® (ACEDS™) has conducted on the case, including requesting financial disclosures for Judge Peck for 2008, 2009, 2010 and 2011 (for items including for “honoraria” and “teaching fees.”).  She wonders why “a certification body would want to be so heavily involved in an investigation of a judge in a very controversial case” and offers some possible thoughts as to why.  A very interesting read!

So, what do you think?  Are you “maxed out” on Da Silva Moore coverage yet?  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 Case Law: Another Case with Inadmissible Text Messages
 

Yesterday, we discussed a case – Commonwealth v. Koch, No. 1669-MDA-2010, 2011 Pa. Super. LEXIS 2716 (Sept. 16, 2011) – where a Pennsylvania Superior Court ruled text messages inadmissible, declaring that parties seeking to introduce electronic materials, such as cell phone text messages and email, must be prepared to substantiate their claim of authorship with “circumstantial evidence” that corroborates the sender's identity.  That case is now being appealed to the state Supreme Court.  Today, we have another case – Rodriguez v. Nevada, No. 56413, 2012 WL 1136437 (Nev. Apr. 5, 2012) – where text messages were ruled inadmissible.

In this case, the Nevada Supreme Court found that a lower court abused its discretion in admitting text messages because the State failed to provide sufficient evidence corroborating the identity of the sender. The defendant, Kevin Rodriguez, was found guilty in trial court of multiple counts associated with an attack of a woman in her home. On appeal, he argued that the trial court erred in overruling an objection to the admission of 12 text messages because the state failed to authenticate the messages and the messages constituted inadmissible hearsay.

Citing Commonwealth v. Koch, among other cases, the Nevada Supreme Court found that it is necessary that the identity of the author of the text message be established through corroborating evidence presented. In this case, the state did establish that the victim’s cell phone was stolen during the attack, and that the defendant was in possession of the cell phone prior to being arrested.

The court noted that “Text messages offer new analytical challenges when courts consider their admissibility.  However, those challenges do not require a deviation from basic evidentiary rules applied when determining authentication and hearsay.”  Further noting that “establishing the identity of the author of a text message through the use of corroborating evidence is critical to satisfying the authentication requirement for admissibility", the court concluded that when there has been an objection to admissibility of a text message, “the proponent of the evidence must explain the purpose for which the text message is being offered and provide sufficient direct or circumstantial corroborating evidence of authorship in order to authenticate the text message as a condition precedent to its admission”.

Since the state did not offer any corroborating evidence that the defendant authored 10 of the 12 text messages, those messages were ruled as inadmissible.  The other two messages were deemed admissible and not considered to be hearsay because in those instances, the state was able to present bus surveillance video of the defendant participating in using the phone at the time those two messages were sent. Despite the erroneous admission of the other 10 text messages, however, the Nevada Supreme Court held that the error was harmless as there was a considerable amount of other evidence pointing to the guilt of the defendant.

So, what do you think?  Should text messages be ruled inadmissible without corroborating evidence?  Will cases like this significantly reduce the use of text messages as evidence in litigation?  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 Case Law: Inadmissibility of Text Messages Being Appealed
 

Last October, we covered a case – Commonwealth v. Koch, No. 1669-MDA-2010, 2011 Pa. Super. LEXIS 2716 (Sept. 16, 2011) – where a Pennsylvania Superior Court ruled text messages inadmissible, declaring that parties seeking to introduce electronic materials, such as cell phone text messages and email, must be prepared to substantiate their claim of authorship with “circumstantial evidence” that corroborates the sender's identity.  That case, where Amy N. Koch was originally convicted at trial on drug charges (partially due to text messages found on her cell phone), is now being appealed to the state Supreme Court.

This article from The Legal Intelligencer regarding the case, notes the following:

“The justices limited the appeal to two issues, leaving the language used by the state intact.

First, the justices will examine whether the text messages “were not offered for their truth” and were therefore admissible. The state questioned whether the Superior Court, in reversing a Cumberland County judge’s decision to admit the texts, had ruled against its own previous holding in another case and thusly created “uncertainty in the law.”

The high court is also tasked with reviewing the case in terms of Pa.R.E. 901, on “Requirement of Authentication or Identification.” According to the Tuesday allocatur grant, prosecutors asked the court to examine whether the Superior Court panel “misapprehended” Rule 901, again going against its own jurisprudence and again creating “uncertainty.”

Despite a victory before the intermediate appellate court, Koch’s attorney called the justice’s decision to take up the case “good news.”

For Camp Hill, Pa., attorney Michael O. Palermo Jr., the challenge represents a chance for the high court to set precedent against electronic documents “blindly coming into evidence.”

“I have a problem with that and I hope the Supreme Court does too,” Palermo told The Legal following the grant of allocatur.”

So, what do you think?  Was the Superior court right in ruling against the admission of these text messages as evidence? Will the State Supreme Court uphold the decision to rule the text messages as inadmissible?  If they do, will that decision create more eDiscovery problems than it solves?  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 Case Law: Judge Peck Stays Defendant’s Production in Da Silva Moore
 

Yesterday, we discussed the latest event in the eDiscovery case of the year – the defendant’s response opposing the plaintiff’s motion for recusal.  I thought today we would discuss the plaintiffs’ latest objection – to United States District Court Magistrate Judge Andrew J. Peck's rejection of their request to stay discovery pending the resolution of outstanding motions and objections.  However, news in this case happens quickly.

In a short, one-page order on Monday, Judge Peck issued a stay, stopping defendant MSLGroup's production of electronically stored information in Da Silva Moore v. Publicis Groupe & MSL Group, (Case No. 11-CV-1279).

Here is the content of the order:

“On reconsideration, for the reasons stated at today's conference (see transcript), the Court has granted plaintiffs' request to stay MSL's production of ESI, pending Judge Carter's decision on plaintiffs' motions for collective action certification and to amend their complaint.  Defendants have consented to the stay. Jurisdictional discovery regarding Publicis, and discovery between plaintiff and MSL unrelated to MSL's ESI production, are not stayed.

Plaintiffs' May 9, 2012 objections to my prior denial of the stay (Dkt. No. 190) are moot.”

That’s it – short and sweet (to the plaintiffs, at least).

This came after the plaintiffs filed an objection last Wednesday (May 9) to Judge Peck's rejection of their request to stay discovery pending the resolution of outstanding motions and objections. Those motions include a ruling on the plaintiffs' objections to Judge Peck's dismissal of the plaintiffs' issues associated with discovery with predictive coding, the plaintiffs' motion for Peck to recuse himself from the case and motions for conditional certification of collective action and for leave to file a second amended complaint.

For a brief recap and links to prior events in this highly contentious case, yesterday’s blog post provides background since Judge Peck’s order approving computer-assisted review.

More to come, I’m sure.

So, what do you think?  Will computer-assisted review be derailed in this case after all?  Was Judge Peck right to stay production?  Please share any comments you might have or if you’d like to know more about a particular topic.

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