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In Decision That Sounds the “Death Knell” for Fifth Amendment Protection, Defendant Ordered to Provide Cell Phone Password: eDiscovery Case Law

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.

Case Background

In this case involving allegations that the defendant was trafficking a person for sexual servitude, the Commonwealth of Massachusetts seized a cell phone from the defendant that it believed contained material and inculpatory evidence, but was unable to access the phone’s contents because they were protected by a passcode.  The Commonwealth sought to compel the defendant to decrypt the cell phone by filing a motion for an order requiring the defendant to produce a personal identification number access code in the Superior Court.

The central legal issue concerned whether compelling the defendant to enter the password to the cell phone would violate his privilege against self-incrimination guaranteed by both the Fifth Amendment and art. 12.  The Commonwealth argued that under the decision in Commonwealth v. Gelfgatt, 468 Mass. 512, 11 N.E.3d 605 (2014), 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. Following a hearing, a judge denied the Commonwealth’s motion, concluding that the Commonwealth had not proved that the defendant’s knowledge of the password was a foregone conclusion under the Fifth Amendment.

Several months later, the Commonwealth renewed its motion and included additional factual information that it had not set forth in its initial motion. The judge denied the renewed motion, noting that because the additional information was known or reasonably available to the Commonwealth when the initial motion was filed, he was “not inclined” to consider the renewed motion under the Massachusetts Rules of Criminal Procedure.  The Commonwealth then filed a petition for relief in the county court, and the single justice reserved and reported the case to the full court. The single justice asked the parties to address three specific issues, in addition to any other questions they thought relevant:

  1. What is the burden of proof that the Commonwealth bears on a motion like this in order to establish a “foregone conclusion,” as that term is used in Commonwealth v. Gelfgatt?
  2. Did the Commonwealth meet its burden of proof in this case?
  3. When a judge denies a ‘Gelfgatt’ motion filed by the Commonwealth and the Commonwealth thereafter renews its motion and provides additional supporting information that it had not provided in support of the motion initially, is a judge acting on the renewed motion first required to find that the additional information was not known or reasonably available to the Commonwealth when the earlier motion was filed before considering the additional information?

Court’s Ruling

In an opinion written by Justice J. Kafker, with regard to question 1, he wrote that: “we conclude that when the Commonwealth seeks a Gelfgatt order compelling a defendant to decrypt an electronic device by entering a password, art. 12 requires that, for the foregone conclusion to apply, the Commonwealth must prove beyond a reasonable doubt that the defendant knows the password.”

With regard to question 2, Justice Kafker wrote: “The defendant’s possession of the phone at the time of his arrest, his prior statement to police characterizing the LG phone’s telephone number as his telephone number, the LG phone’s subscriber information and CSLI records, and Sara’s statements that she communicated with the defendant by contacting the LG phone, taken together with the reasonable inferences drawn therefrom, prove beyond a reasonable doubt that the defendant knows the password to the LG phone. Indeed, short of a direct admission, or an observation of the defendant entering the password himself and seeing the phone unlock, it is hard to imagine more conclusive evidence of the defendant’s knowledge of the LG phone’s password. The defendant’s knowledge of the password is therefore a foregone conclusion and not subject to the protections of the Fifth Amendment and art. 12.”

With regard to question 3, Justice Kafker wrote: “Although some, if not all, of the additional information included in its renewed motion may very well have been available to the Commonwealth at the time it filed its initial motion, in light of the nature and purpose of Gelfgatt motions and the circumstances of this case, the judge erred in concluding that he need not consider the additional information “[a]bsent a showing of new evidence not otherwise available to the Commonwealth.” The motion judge therefore abused his discretion in denying the Commonwealth’s renewed Gelfgatt motion.”

As a result, the motion judge’s denial of the Commonwealth’s renewed Gelfgatt motion was reversed, and the case was remanded to the Superior Court for entry of an order compelling the defendant to enter the password into the cell phone

Justice J. Lenk, while concurring with the decision, also said this: “The court’s decision today sounds the death knell for a constitutional protection against compelled self-incrimination in the digital age. After today’s decision, before the government may order an individual to provide it with unencrypted access to a trove of potential incriminating and highly personal data on an electronic device, all that the government must demonstrate is that the accused knows the device’s passcode. This is not a difficult endeavor, and in my judgment, the Fifth Amendment and art. 12 demand more. That is, before the government may compel an accused’s assistance in building a case against that accused, the government must demonstrate that it already knows, with reasonable particularity, of files on the device relevant to the offenses charged, and that the defendant knows the passcode to unlock them. Because I conclude that the government here met those burdens, I join in the court’s result.”

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

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.

In Lawsuit Over Prince Music, Court Grants Monetary But Not Adverse Inference Sanctions (Yet): eDiscovery Case Law

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.

Case Background

In this infringement case involving release of previously unreleased music by the late artist Prince, the estate of Prince filed suit against George Ian Boxill, a sound engineer who worked with Prince and allegedly took tracks of certain songs that he worked on with Prince in April 2017, as well as RMA and Deliverance, LLC.  The plaintiffs subsequently added David Staley and Gabriel Solomon Wilson (principals of RMA and Deliverance) and two law firms in June 2018 to the lawsuit.

In December 2017, after Plaintiffs filed their first amended complaint, they, RMA, Deliverance, and Boxill, stipulated to certain protocols regarding the discovery of ESI in which the parties indicated that they had taken “reasonable steps to preserve reasonably accessible sources of ESI.”  The Court then issued its pretrial scheduling order in January 2018, directing the parties to preserve “all electronic documents that bear on any claims, defenses, or the subject matter of this lawsuit.”

During discovery, the plaintiffs received a third-party production of documents from a public relations firm that the defendants had hired which included text messages that Wilson sent to an employee of the public relations firm. The plaintiffs then filed a motion to compel discovery from RMA, seeking production of text messages that Staley and Wilson sent to each other and third parties and the Court ordered the defendants to produce all responsive text messages on July 19, 2018.  During a meet and confer in September 2018, counsel for Wilson, Staley, RMA and Deliverance indicated that they could not produce responsive text messages because they had not preserved their text messages, indicating that text messages had not been preserved because Staley and Wilson did not disengage the auto-delete function on their phones and because Staley had wiped and discarded his phone in October 2017 and Wilson had wiped and discarded his phone in January 2018 and then wiped and discard his new phone in May 2018.  No back-up data existed for either phone, leading to the plaintiffs’ motion for sanctions under Rule 37(e)(1), 37(e)(2) and 37(b)(2)(A).

Judge’s Ruling

With regard to the defendants’ duty to preserve, Judge Leung ruled that “the duty to preserve evidence arose no later than February 11, 2017, when Staley sent an e-mail regarding his plans to release the music at issue here. In that e-mail, Staley acknowledged the riskiness of his and RMA’s position and indicated that the Prince Estate could challenge their actions. Staley referred specifically to the possibility of litigation in that e-mail, noting that RMA was not concerned by a lawsuit because it had been indemnified by Boxill. It is apparent, based on this letter, that the RMA Defendants anticipated litigation following their release of the Prince music.”

With regard to whether the defendants took reasonable steps to preserve relevant ESI, Judge Leung noted that “It takes, at most, only a few minutes to disengage the auto-delete function on a cell phone” and stated “Failure to follow the simple steps detailed above alone is sufficient to show that Defendants acted unreasonably.”  He then added:

“But that is not all the RMA Defendants did and did not do. Most troubling of all, they wiped and destroyed their phones after Deliverance and RMA had been sued, and, in the second instance for Wilson, after the Court ordered the parties to preserve all relevant electronic information, after the parties had entered into an agreement regarding the preservation and production of ESI, and after Plaintiffs had sent Defendants a letter alerting them to the fact they needed to produce their text messages. As Plaintiffs note, had Staley and Wilson not destroyed their phones, it is possible that Plaintiffs might have been able to recover the missing text messages by use of the “cloud” function or through consultation with a software expert. But the content will never be known because of Staley and Wilson’s intentional acts. The RMA Defendants’ failure to even consider whether Staley and Wilson’s phones might have discoverable information before destroying them was completely unreasonable. This is even more egregious because litigation had already commenced.”

Judge Leung rejected several arguments from the defendants as to why their decision not to preserve text messages was reasonable, including the claim that “they could not possibly be expected to know that they should preserve text messages”, stating “None of these arguments is persuasive”.  Judge Leung also found that “There is no doubt that Plaintiffs are prejudiced by the loss of the text messages.”  But, with regard to the adverse inference sanctions sought by the plaintiffs, he also said that “given the fact that discovery is still on-going, the record is not yet closed, and the case is still some time from trial, the Court believes it more appropriate to defer consideration of those sanctions to a later date, closer to trial”.  He did, however, order the 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.

So, what do you think?  Should the defendants have received the adverse inference sanction as well?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

For more info on this ruling, check out Ralph Losey’s e-Discovery Team® blog here.

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 Orders Defendants to Comply with Rule 26(a), Ditch the Boilerplate Objections: eDiscovery Case Law

In RightCHOICE Managed Care, Inc. v. Hospital Partners, Inc., No. 5:18-cv-06037-DGK (W.D. Mo. Feb. 1, 2019), Missouri District Judge Greg Kays ordered the discovery defendants to “supplement their initial disclosures so that they comply with Rule 26(a)” (within 14 days) and “either respond to Plaintiffs’ interrogatories and requests for production in good faith or specifically tailor their objections to each question or request”, as well as requiring each discovery defendant to “prepare a statement identifying the steps taken to preserve discoverable information”, among other things.

Case Background

In this case involving alleged improper billing of lab tests, the parties conferred under Federal Rule of Civil Procedure 26(f) in October 2018.  The plaintiffs served the discovery defendants with interrogatories and requests for production of documents the following week. The discovery defendants responded on November 26, objecting to every one of the plaintiffs’ questions and requests, using language like this:

“Defendant objects to this request as vague, overly broad, unduly burdensome, harassing, and/or seeking information that is irrelevant and/or not reasonably calculated to lead to the discovery of admissible evidence.”

On January 24, the Court held a teleconference hearing to discuss the dispute. During the hearing, the plaintiffs stated that the discovery defendants failed to identify any witnesses in their Rule 26(a)(1) initial disclosures, made boilerplate objections to every interrogatory, and improperly invoked the Fifth Amendment. When the Court asked the discovery defendants’ counsel whether they had produced a single document in the case, he “enthusiastically” replied, “Nope.”

As a result, the plaintiffs requested that the Court order the discovery defendants to (1) amend their initial disclosures; (2) produce responsive, non-privileged documents requested from Hospital Partners and Empower H.I.S.; (3) specify exactly which interrogatories Byrns and Perez object to on the basis of the privilege against self-incrimination; (4) answer Plaintiffs’ interrogatories in good faith or have adverse inferences drawn from their refusal; and (5) each provide a sworn statement identifying the steps taken to preserve discoverable information. Not surprisingly, the discovery defendants asked the Court to deny these requests.

Judge’s Ruling

Noting that “Rule 26(a)(1) requires litigants to provide ‘the name and, if known, the address and telephone number of each individual likely to have discoverable information’”, Judge Kays stated that the discovery defendants’ disclosures – which merely listed “corporate representative[s]” of various unnamed entities, such as “any billing/management vendors of the Defendants, with no specific reference to the information held by the entities and no address or phone numbers – “fail to comply with Rule 26(a)(1)”.  Judge Kays ordered the discovery defendants to “supplement their initial disclosures with the specific names and contact information, if known, of individuals likely to have discoverable information.”  He also indicated that they “must also provide copies of, or a list detailing, by category and location, all documents, electronically stored information, and tangible things in their possession, custody, or control that they may use to support their claims or defenses.”

Judge Kays also rejected the discovery defendants’ use of the Fifth Amendment privilege against self-incrimination, stating: “Their invocation is invalid. To begin, the Fifth Amendment does not protect Hospital Partners and Empower H.I.S. because they are artificial legal entities” (despite the discovery defendants’ claims that they are “alter egos of the individual defendants”.  As a result, he ordered defendants Hospital Partners and Empower H.I.S. “to produce relevant, non-privileged documents and respond to Plaintiffs’ interrogatories” and also ordered defendants Byrns and Perez “to produce all relevant, non-privileged business records in their possession” and to “contour their Fifth Amendment objections to each particular interrogatory, so that, if necessary, the Court can make a question-by-question judgment on the privilege’s applicability.”

As for the boilerplate objections, Judge Kays ordered the discovery defendants to “either respond to Plaintiffs’ questions and requests or tailor their objections with much greater particularity. If they assert a privilege, they must provide a privilege log.”

Finally, Judge Kays stated that the discovery defendants’ “failure to produce a single document, months into discovery, concerns the Court” and also expressed concerns about the plaintiffs’ allegations that the defendants “have not issued retention notices and {the plaintiffs} are unaware of the location of Empower H.I.S.’s records.”  As a result, Judge Kays agreed with the plaintiffs that “the Discovery Defendants each need to prepare a sworn statement detailing their efforts to preserve discoverable information” and noted that if the discovery defendants’ behavior were to continue, “the Court will consider imposing sanctions.”

So, what do you think?  Should the defendants have already been sanctioned, or is that premature?  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.

To Preserve Sanction Potential, Plaintiff Fights To NOT Have Claim Against Them Dismissed: eDiscovery Case Law

Yes, you read that right.  In DR Distrib., LLC v. 21 Century Smoking, Inc., No. 12 CV 50324 (N.D. Ill. Feb. 12, 2019), Illinois District Judge Iain D. Johnston denied the defendants’ Motion for Leave to Amend their counterclaim to remove their own defamation counterclaim (Count VIII) against the plaintiffs – a move to which the plaintiffs objected, because it could eliminate their chance to pursue sanctions against the defendants for ESI spoliation.

Case Background

In this trademark infringement case, where, according to Judge Johnston, “the parties have engaged in a plethora of discovery disputes and pleadings practice”, the defendants moved for leave to amend their counterclaim under Fed. R. Civ. P. 15 to remove Count VIII, “defamation per se”, against the plaintiff – three years and eight months after the expiration of the amended pleading deadline.  This was the third time that one of the parties moved to amend a pleading after the deadline (second time requested by the defendant), the court had denied the previous two attempts.

Judge’s Ruling

Judge Johnston began his ruling by stating:

“A party rarely objects to the dismissal of a claim against it. But it happens. See, e.g., Chavez v. Illinois State Police, 251 F.3d 612, 655-56 (7th Cir. 2001). This is one of those rare occasions. Context explains these unusual circumstances. Not surprisingly, like most bizarre legal circumstances, this situation is caused because each side is attempting to obtain a procedural litigation advantage. This Court is confident that its analysis and decision is correct. But this Court also recognizes that this opinion proves two old adages: (1) bad facts make bad law; and (2) judges who like all their decisions are likely bad judges.”

Judge Johnston proceeded to note that “raging in this case is an ESI food fight of Hollywood proportions”, stemming from “the loss of ESI relating to the defendants’ seemingly relevant emails and instant messages”, which was initially limited to the defendants’ defamation counterclaim.  As Judge Johnston noted: “During the ESI melee, by this Motion, defendants sought to eliminate Count VIII. Although unstated, to even the most casual observer, the reason for this move was obvious: If Count VIII were eliminated, then the ESI fracas would be moot. No harm; no foul.”  He also stated that “plaintiffs promise to file a brief longer than a CVS receipt to address the ESI issues”, raising “nearly every conceivable basis for sanctions”.  Summing up the situation, Judge Johnston stated that “plaintiffs cannot obtain these sanctions if Count VIII is eliminated (at least if the ESI were only relevant to Count VIII). Therefore, plaintiffs object, despite the seeming benefit of having a claim against them eliminated. So here we are.”

Make sense now?

In considering the defendants’ motion, Judge Johnston indicated that “defendants dedicate a large portion of their briefs to argue that Rule 15 governs this Motion, and that ‘[t]he court should freely give leave [to amend] when justice so requires’”, but responded that “when a motion to amend a pleading comes after a case management order is entered, Rule 16(b)(4)’s ‘good cause’ standard must be satisfied before a court considers whether Rule 15(a)(2)’s standards are satisfied.”  Judge Johnston also observed that the defendants had failed to show diligence, stating:

“This Motion, brought almost four years after the expiration of the amended pleading deadline, represents the first time that defendants have sought to dismiss Count VIII. These facts would lead a reasonable person to conclude that the real, but unstated, reason to eliminate Count VIII is to avoid the ESI maelstrom on the horizon.”

As a result, stating that defendants “have failed to show good cause pursuant to Rule 16 to amend the case management order”, Judge Johnston denied their motion and indicated that the “issues related to possible sanctions raised in plaintiffs’ response will be addressed in the separate round of briefing.”

So, what do you think?  Is the plaintiff making a big gamble in leaving a claim against them in the case to try to push for sanctions?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

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

No Bad Faith Means No Sanctions for Failing to Preserve Video of Altercation: eDiscovery Case Law

In Stovall v. Brykan Legends, LLC, No. 17-2412-JWL (D. Kan. Feb. 7, 2019), Kansas Magistrate Judge James P. O’Hara denied the plaintiff’s motion for sanctions based on the defendant’s alleged spoliation of a surveillance video that shows an altercation between the plaintiff and her supervisor, stating that “plaintiff has failed to meet the requirements of Fed. R. Civ. P. 37(e)(2)”.

Case Background

In this employment discrimination case involving claims of sexual harassment, the plaintiff was injured in 2016 in a physical confrontation with her supervisor (who was also the alleged harasser) and the confrontation was recorded on one of defendant’s surveillance cameras.  Shortly thereafter, the plaintiff filed a claim for workers’ compensation based on her alleged injuries and a few months after that, the plaintiff filed a discrimination charge with the Kansas Human Rights Commission (“KHRC”), which sent the defendant a letter advising that the destruction of records related to the charge was forbidden by law.

The plaintiff’s workers’ compensation claim was settled in January 2017.  In February 2017, plaintiff’s current counsel sent defendant a letter, stating plaintiff had retained them to represent her in connection with employment discrimination claims and advising defendant of its obligation to preserve records, videos, and files pertaining to plaintiff’s employment and discharge.  The plaintiff subsequently filed the suit in July 2017.

On July 3, 2018, plaintiff tendered a document request for, among other things, “surveillance footage, recordings or other video…that refer or relate to any events alleged in Plaintiff’s Complaint.”  The defendant responded that there “was a surveillance tape that depicted the altercation”, but that defendant “is unable to locate the tape.” The response also advised that a “copy or link” of the video was provided to the attorney representing the defendant in the workers’ compensation matter, but that “the link has expired.” The defendant’s representative (Rauschelbach) testified at his deposition that after the incident, he maintained a copy of the surveillance video in his desk drawer, but that he could no longer find it, despite “desperately looking”, leading to the plaintiff’s motion for sanctions.

Judge’s Ruling

In assessing the plaintiff’s motion, Judge O’Hara noted that “the parties agreed the surveillance video is a form of electronically stored information (“ESI”) subject to the preservation requirements of Rule 37(e)”.  As a result, he evaluated each of the factors of Rule 37(e) in turn:

  • Duty to Preserve: Judge O’Hara noted that “defendant concedes that as of October 11, 2016, the date on which it received notice of plaintiff’s discrimination charge from the KHRC, it ‘had an obligation to preserve the video.’” But, regarding the defendant’s argument that it had already “turned the video over to its insurance company” in connection with the workers’ compensation claim, Judge O’Hara said “The problem with defendant’s argument is that it does not account for the fact that defendant had two copies of the surveillance video. Defendant does not address the duty it had to preserve the copy of the video kept in Rauschelbach’s desk drawer.”
  • No Reasonable Steps to Preserve: Noting that the “defendant does not suggest any steps it took to preserve the video”, Judge O’Hara stated regarding the contention that sending a copy to its workers’ compensation insurer was a step to preserve that “The court knows of no case construing such an action as a step to preserve.”
  • No Ability to Restore or Replace: Noting that “plaintiff acknowledged during the pretrial conference that she had not issued a subpoena to the workers’ compensation insurer in an attempt to have a copy of the video retrieved off of their system or a computer hard drive”, Judge O’Hara stated that “the court concludes plaintiff has not proven the video cannot be replaced or restored” and in “a close call”, indicated he “has not found all three prerequisites to spoliation met”.
  • Bad Faith: Judge O’Hara noted that even if the plaintiff had met the spoliation prerequisites, she failed to demonstrate bad faith on the part of the defendant. Judge O’Hara stated “Although defendant’s failure to take steps to preserve the ESI may be negligent, even grossly negligent, nothing in the record suggests defendant intentionally lost the video.”

As a result, the plaintiff’s motion was denied.

So, what do you think?  Do you agree the plaintiff failed to demonstrate spoliation and bad faith?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

If you read my post on Thursday, you learned about the love of my life.  Today is her birthday.  Happy Birthday, honey!  I love you!

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.

NY Appeals Court Extends Discoverability of Social Media Photos to “Tagged” Photos: eDiscovery Case Law

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.

It’s rare that we can include the entire case opinion in our blog post, but, in perhaps the shortest case ruling we’ve ever covered, here is that case opinion.

“Private social media information can be discoverable to the extent it ‘contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims’ (Patterson v. Turner Const. Co., 88 A.D.3d 617, 618, 931 N.Y.S.2d 311 [1st Dept. 2011] ). Here, plaintiff, who at one time was a semi-professional basketball player, claims that he has become disabled as the result of the automobile accident at issue, such that he can no longer play basketball. Although plaintiff testified that pictures depicting him playing basketball, which were posted on social media after the accident, were in games played before the accident, defendant is entitled to discovery to rebut such claims and defend against plaintiff’s claims of injury. That plaintiff did not take the pictures himself is of no import. He was “tagged,” thus allowing him access to them, and others were sent to his phone. Plaintiff’s response to prior court orders, which consisted of a HIPAA authorization refused by Facebook, some obviously immaterial postings, and a vague affidavit claiming to no longer have the photographs, did not comply with his discovery obligations. The access to plaintiff’s accounts and devices, however, is appropriately limited in time, i.e., only those items posted or sent after the accident, and in subject matter, i.e., those items discussing or showing defendant engaging in basketball or other similar physical activities (see Forman v. Henkin, 30 N.Y.3d 656, 665, 70 N.Y.S.3d 157, 93 N.E.3d 882 [2018]; see also Abdur–Rahman v. Pollari, 107 A.D.3d 452, 454, 967 N.Y.S.2d 31 [1st Dept. 2013] ).

So, what do you think?  Should discoverability of photos be extended to photos where the party is “tagged” in the photo or should privacy concerns weigh heavier here?  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 Non-Party’s Request to Quash Subpoena in Telecommunications Dispute: eDiscovery Case Law

In Fair v. Commc’ns Unlimited Inc., No. 4:17 CV 2391 RWS (E.D. Mo. Jan. 16, 2019), Missouri District Judge Rodney W. Sippel denied the motion to quash discovery filed by non-party Charter Communications (Charter), finding that the plaintiff had demonstrated that she had been unable to obtain the information from the defendants, that her request was not overbroad or unduly burdensome, that the information requested would not disclose personally identifiable information (PII) and that any sensitive or confidential information could be protected with redactions or a protective order.

Case Background

In this dispute regarding alleged misclassification of the plaintiff and other technicians as independent contractors, the court previously granted conditional certification to an opt-in class of Technicians who installed cable on behalf of the defendant.  On May 11, 2018, the plaintiff served a subpoena on Charter, noticing a 30(b)(6) deposition of a corporate representative and requesting four categories of documents: (1) any agreements between Charter and defendants, (2) applications used by Charter to track technicians, (3) technician information stored in those applications, and (4) the size, number, and types of emails exchanged between Charter and defendants during a three year period representing the window of time for which potential opt-in class members would have worked for Defendants.

On July 24, Charter filed this motion to quash the plaintiff’s subpoena, representing that she sought the same information from the defendants three times, and that she had not received any responsive documents by when she served the subpoena, or by August 7, when she filed her response in opposition. After the plaintiff’s second motion to compel against the defendants was granted, they agreed to provide the plaintiff with any agreements they had with Charter, but she continued to maintain “her entire subpoena to Charter is valid.”

Judge’s Ruling

Judge Sippel addressed each of Charter’s arguments for quashing the subpoena, as follows:

  • Any agreements or emails it has exchanged with Defendants and their employees are more conveniently obtained from Defendants: “Fair sought this information from the parties three times before seeking it from Charter”;
  • Fair’s request is overbroad, because it is not related to the narrow question of how Defendants pay their employees: “Charters’ application information, agreements, and emails are also necessary to demonstrate how much control Defendants exercised over the Technicians… As a result, Fair’s request is not overbroad or unduly burdensome.”;
  • Complying with the subpoena would violate customer privacy because it would reveal the addresses of customers: “The only data that Fair seeks from the tracking applications include Technicians’ contact information, identification numbers, and time stamp data…Fair also asks that Charter “identify” certain aspects of the tracking applications, but only in general terms… Charter’s PII argument is without merit.”;
  • The requested information includes sensitive and confidential commercial information: “if any of the requested documents would disclose sensitive or confidential commercial information, Charter can protect that information with redactions or a protective order.”

As a result, Judge Sippel denied Charter’s motion to quash the plaintiff’s subpoena.

So, what do you think?  Was the judge correct in rebutting Charter’s objections?  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.

Relying on Interpretation of the SCA, Appeals Court Reverses Subpoenas Against Facebook: eDiscovery Case Law

In Facebook, Inc. v. Wint, No. 18-CO-958 (D.C. App. Jan. 3, 2019), the District of Columbia Court of Appeals, stating that “[t]he plain text of the SCA (Stored Communications Act) thus appears to foreclose Facebook from complying with Mr. Wint’s subpoenas”, concluded that the appellee “has not established the existence of a serious constitutional doubt that could warrant application of the doctrine of avoidance” reversing the trial court’s order holding Facebook in civil contempt for refusing to comply with subpoenas served by appellee Daron Wint.

Case Background

The appellee was charged with murder in D.C. Superior Court. Before trial, he filed an ex parte motion asking the trial court to authorize defense counsel to serve subpoenas duces tecum on Facebook and a Facebook subsidiary for records, including the contents of communications, relating to certain accounts. Facebook objected, arguing that the SCA prohibits Facebook from disclosing such information in response to a criminal defendant’s subpoena. The trial court approved the subpoena request and held Facebook in civil contempt for failing to comply.

The case was argued back before the appellate court back in October 2018.

Appeals Court Ruling

In the appellate court opinion issued by Associate Judge McLeese, he noted that “In the trial court, Mr. Wint argued that if the SCA were interpreted to preclude Facebook from complying with the subpoenas at issue, then the SCA would be unconstitutional. Mr. Wint has not renewed that argument in this court, however, and that argument therefore is not before us. Rather, Mr. Wint has argued in this court only that the SCA is properly interpreted to permit Facebook to comply.”  He also noted this:

“The SCA broadly prohibits providers from disclosing the contents of covered communications, stating that providers “shall not knowingly divulge to any person or entity the contents” of covered communications, except as provided…The SCA contains nine enumerated exceptions to this prohibition…Mr. Wint does not rely on any of those exceptions, and none of them applies in the present case. The plain text of the SCA thus appears to foreclose Facebook from complying with Mr. Wint’s subpoenas.  The structure of the SCA points to the same conclusion.”

The opinion also noted that Section 2702 (Voluntary disclosure of customer communications or records) and Section 2703 (Required disclosure of customer communications or records) of the SCA “appear to comprehensively address the circumstances in which providers may disclose covered communications. Those circumstances do not include complying with criminal defendants’ subpoenas.”  The opinion also noted that “Authority from other jurisdictions also favors a plain-language reading of the SCA. As far as we have determined, every court to consider the issue has concluded that the SCA’s general prohibition on disclosure of the contents of covered communications applies to criminal defendants’ subpoenas.”

The appellee pushed for an alternative interpretation of § 2702, which addressed only the circumstances in which providers may voluntarily disclose covered communications and did not address compliance with court-ordered disclosures, such as subpoenas. In support of this interpretation, the appellee relied on six principal contentions, which were discussed in detail in the opinion. However, the opinion stated:

“Although some of Mr. Wint’s contentions have some force, on balance we are not persuaded by Mr. Wint’s argument.”

As a result, the appellate court reversed the trial court’s order holding Facebook in civil contempt for refusing to comply with subpoenas served by the appellee.

So, what do you think?  Does the SCA, which has been in effect for over thirty years, adequately the rights to request data from providers in 2019?  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.

Illinois Court Says Biometric Fingerprint is Violation of Privacy, Even Without Injury: Data Privacy Trends

With Legaltech® behind us, it’s time to get back to covering interesting news items.  On January 25, the Illinois Supreme Court rejected an argument from a popular theme park that would have limited a state law that requires consent for the use of facial recognition and other biometrics.

According to The Verge (Crucial biometric privacy law survives Illinois court fight, written by Russell Brandom), Illinois’ Biometric Information Privacy Act (or BIPA), passed in 2008, requires affirmative consent for companies to collect biometric markers from their customers, including fingerprints and facial recognition models. The law has become a sticking point for a number of tech companies using facial recognition as a photo-sorting tool, and both Facebook and Google have faced lawsuits for alleged BIPA violations in their photo-tagging products. Facebook has pushed for legislative revisions to the law on several occasions, but so far unsuccessfully.

The January ruling involved Six Flags, which allegedly fingerprinted a 14-year-old visitor without parental approval. Contesting the case, Six Flags argued it couldn’t be held liable unless the plaintiff demonstrated a tangible injury from the unauthorized collection, often a difficult task in privacy lawsuits. If successful, Six Flags’ would have significantly limited BIPA’s power and made facial recognition much easier for companies like Facebook and Google.

But the Illinois Supreme Court was ultimately unconvinced by the argument, ruling that “a person need not have sustained actual damage beyond violation of his or her rights under the Act.” In Illinois, businesses that collect biometric data will have to do so carefully, which the court took to be a reasonable intent of the law itself. “Whatever expenses a business might incur to meet the law’s requirements,” the ruling reads, “are likely to be insignificant compared to the substantial and irreversible harm that could result if biometric identifiers and information are not properly safeguarded.”

The ruling has been met with cheers from privacy groups, like the Electronic Frontier Foundation, but some business groups, like the Illinois Chamber of Commerce, expressed concern over the ruling, saying “We fear that today’s decision will open the floodgates for future litigation at the expense of Illinois’ commercial health”.  With the General Data Protection (GDPR) going into effect last year, the California Consumer Privacy Act (CCPA) passed and set to go into effect next year, and case law rulings like the SCOTUS ruling in Carpenter v. US, I’ve been saying that 2018 was the year of data privacy.  It doesn’t seem to be slowing down any in 2019.

So, what do you think?  Do you think we’re going too far on enforcing data privacy or do you think that rulings like this are appropriate?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Court Declines to Order Plaintiff to Produce Cell Phone in Employment Discrimination Case: eDiscovery Case Law

In Santana v. MKA2 Enterprises, Inc., No. 18-2094-DDC-TJJ (D. Kan. Jan. 8, 2019), Magistrate Judge Teresa J. James denied the defendant’s Motion to Compel regarding the defendant’s request for the plaintiff to produce all of his cellphones for inspection and copying.  Judge James did order the plaintiff to “produce complete copies of all responsive text messages to the extent they have not already been produced.”

Case Background

In this employment discrimination case where the plaintiff alleged he was discriminated against, retaliated against, and terminated because of his race, the parties were unable to resolve their disputes as to Request for Production No. 21, which stated:

“Produce all cellular telephones used by you from the date your employment with Defendant started to the present for purposes of inspection and copying.”

The plaintiff objected, stating that “this request seeks irrelevant information and is not proportional to the needs of this case. The request is unduly burdensome and invasive in light of the nature of the case—Defendant has shown no need for the production of Plaintiff’s cell phone.”

Although not the subject of the motion to compel, the defendant also requested that the plaintiff “produce a full and complete copy of all text messages between (Plaintiff) and Defendant and between (Plaintiff) and current or former employees of Defendant.”  The plaintiff objected to that request as well, stating that the request “seeks irrelevant information”.

Judge’s Ruling

Judge James stated that “Defendant’s RFP No. 21 is broad in scope, requesting production of all Plaintiff’s cell phones for inspection and copying, without any limitation on the data ultimately to be produced from the copy or image of the phone(s)” and observed that “Defendant sets out no protocol or process through which the data it deems responsive would be culled from the copy or image of the phone(s) and any unresponsive and/or privileged data removed or protected.”

Judge James referenced Advisory Committee Notes to Fed. R. Civ. P. 34(a):[8], which stated (in part): “Inspection or testing of certain types of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy… Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.”

Judge James also noted that “Defendant cites no cases involving the imaging of a cell phone and only one case in which a computer inspection and imaging was ordered” and (unlike that case), the plaintiff hadn’t shown any history of providing incomplete and inconsistent responses to production requests.  As a result, Judge James stated:

“The Court finds that Defendant’s RFP No. 21 is overly broad, unduly burdensome and not proportional to the needs and issues of this case. Defendant’s separate request for the narrowed scope of text messages also illustrates that Defendant has the ability to obtain relevant cell phone data through less invasive means. In accordance with Rule 34(a), the Court must guard against the undue intrusiveness that would result from the requested inspection and copying of Plaintiff’s cell phone(s). The Court will therefore sustain Plaintiff’s objections to RFP No. 21.”

Judge James did direct the plaintiff to “supplement his response to Request for Production No. 41 and produce complete copies of all responsive text messages to the extent they have not already been produced.”

So, what do you think?  Was the judge right or should she have compelled production of the cell phone?  Could the defendant have handled the situation differently?  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.