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Despite Carpenter, This Defendant’s Cell Site Location Information is Ruled Admissible: eDiscovery Case Law

In United States v. Pleasant, Criminal Action No. 17-62 (E.D. Pa. Sept. 5, 2018), Pennsylvania District Judge Gerald Austin McHugh ruled that the defendant’s motion to suppress historical cell-site location information associated with his cellular telephone lacked merit, despite the Supreme Court’s recent decision in Carpenter v. United States, because the agents proceeded “by means of a court order issued under a federal statute that had repeatedly withstood Fourth Amendment scrutiny…in good faith under then existing law”.

Case Background

In this prosecution for multiple bank robberies, the defendant moved to suppress historical cell-site location information (CSLI) associated with his cellular telephone, citing the recent Supreme Court ruling in Carpenter v. United States. The Government obtained the CSLI, without a warrant, through an order issued pursuant to 18 U.S.C. § 2703(c), a provision of the Stored Communications Act, based on a showing that the records were “relevant and material” to an ongoing criminal investigation.

Judge’s Ruling

Judge McHugh observed that “Defendant correctly argues that under the Supreme Court’s recent decision in Carpenter v. United States, ___ U.S. ___, 138 S. Ct. 2206 (2018), the CSLI was obtained by the Government in violation of the Fourth Amendment. Defendant is also correct that Carpenter retroactively applies to this case. That does not end the inquiry, because the Government is equally correct that there is a good faith exception to application of the exclusionary rule. Having considered the parties’ submissions, I am persuaded that the government agents who accessed this information did so in good faith reliance on a federal statute and circuit court precedent that was controlling at the time.”

While noting that “In Carpenter, the Supreme Court addressed the constitutionality of this provision under the Fourth Amendment and concluded that, in accessing CSLI from wireless carriers, the Government had ‘invaded’ the defendant’s ‘reasonable expectation of privacy in the whole of his physical movements’”, Judge McHugh ruled:

“Despite Carpenter, Defendant’s Motion lacks merit. Under the exclusionary rule, as a general matter, the government may not introduce evidence in a criminal trial that was obtained in violation of the Fourth Amendment. The exclusionary rule, however, is rooted in policy considerations: it serves to enforce the Fourth Amendment by discouraging police misconduct. As the Supreme Court has recognized, the Fourth Amendment protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,’ but it has no provision ‘expressly precluding the use of evidence obtained in violation of its commands.’…Consequently, the exclusionary rule ‘is not an individual right and applies only where it `result[s] in appreciable deterrence.’’…Stated differently, it is a judicially imposed sanction applied when necessary to enforce the Constitution.”

As a result, Judge McHugh ruled: “Because application of the exclusionary rule here would not serve the purpose of deterring unlawful conduct by law enforcement, Defendant’s Motion to Suppress will be denied.”

So, what do you think?  Was the court right to have ruled the CSLI admissible despite the recent Carpenter ruling?  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.

Also, if you’re going to be in Houston on Thursday, September 27, just a reminder that I will be speaking at the second annual Legal Technology Showcase & Conference, hosted by the Women in eDiscovery (WiE), Houston Chapter, South Texas College of Law and the Association of Certified E-Discovery Specialists (ACEDS).  I’ll be part of the panel discussion AI and TAR for Legal: Use Cases for Discovery and Beyond at 3:00pm and CloudNine is also a Premier Platinum Sponsor for the event (as well as an Exhibitor, so you can come learn about us too).  Click here to register!

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 Compels Non-Party Insurance Agents to Produce Text Messages in TCPA Case: eDiscovery Case Law

In Gould v. Farmers Insurance Exchange, No. 4:17 CV 2305 RWS (E.D. Mo. Aug. 30, 2018), Missouri District Judge Rodney W. Sippel granted the plaintiff’s motion to compel two non-party Farmers Insurance agents to comply with subpoenas and produce documents pertaining to text messages that they allegedly sent to potential customers, rejecting the agents’ argument that compliance with the subpoenas would violate their Fifth Amendment right against compelled, self-incriminating testimony.

Case Background

In this Telephone Consumer Protection Act (TCPA) case, the plaintiff alleged that, at the direction of the defendant insurance companies, non-party Farmers Insurance agents James Lohse and Joe Ridgway sent text messages to her without her consent, in violation of the TCPA. The plaintiff sought to represent similarly situated plaintiffs who received messages without their consent marketing certain Farmers Insurance products.

To obtain information on potential plaintiffs and the alleged TCPA violations generally, the plaintiff served subpoenas on the non-party agents, which requested that the agents produce phone numbers of potential customers to which text messages were sent; the content of those text messages; any contracts, correspondence, invoices, and payment records the agents have with other entities that facilitated the alleged spam texts or provided the potential customers’ numbers; documents concerning any purchase of an insurance policy by the recipients of these texts; and any documents reflecting that the recipients of these texts consented to receive those messages.

The non-party agents objected and refused to produce documents responsive to these requests, initially arguing that such discovery was inappropriate until the parties’ resolved an initial question of consent. After the defendants’ declined to file a motion summary judgment on the issue of consent, the agents changed their objections, stating that compelling their production of the requested records would violate their Fifth Amendment Right against self-incrimination, and that the plaintiff’s requests were overly broad and burdensome. The plaintiff moved to compel the production, and the non-party agents moved for a confidentiality order.  The non-party agents argued that their answers to the plaintiff’s production requests would tend to incriminate them because the call logs in question could show a violation of 47 U.SC. § 227(b)(1).

Judge’s Ruling

Noting that the Fifth Amendment “privilege applies specifically to testimony, and not the production of documents, per se”, Judge Sippel stated that “where the documents themselves are incriminating, but their possession, control, and authenticity does not incriminate, the privilege would not apply.”  Continuing, he said:

“In this circumstance, the Agents’ mere possession, production, or authentication of call logs and other documents is not the act that would tend to incriminate them. The Fifth Amendment protection against self-incrimination accordingly does not protect against disclosure of the requested documents because of the ‘settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not ‘compelled’ within the meaning of the privilege.’…The Agents also argue that Gould’s production request is overbroad and burdensome. I disagree. The documents that Gould requests all pertain to whether the Agents texted potential consumers without their consent, and if so, how they did that.”

As a result, Judge Sippel granted the plaintiff’s motion to compel and denied the non-party agents’ motion for a confidentiality order.

So, what do you think?  Should production of potentially incriminating documents be protected under the Fifth Amendment?  Please let us know if 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.

SCOTUS Says Warrantless Access of Cell Phone Locations Violates Fourth Amendment: eDiscovery Case Week

eDiscovery Case Week continues!  We’re catching up on cases leading up to our webcast tomorrow where Tom O’Connor and I will be talking about key eDiscovery case law for the first half of 2018.  With that in mind, this is a key case decision that happened when I was on a family vacation last month.  Did you miss it?  In case you did, here it is.

In Carpenter v. U.S., No. 16–402 (U.S. June 22, 2018), The United States Supreme Court (SCOTUS) held, in a 5–4 decision authored by Chief Justice Roberts, that the government violates the Fourth Amendment to the United States Constitution by accessing historical records containing the physical locations of cellphones without a search warrant.

In 2011, Timothy Carpenter was arrested on suspicion of participating in a string of armed robberies at RadioShack and T-Mobile stores in Michigan and Ohio. In the course of the investigation, FBI agents acquired transactional records from Carpenter’s cell phone carrier. The government sought this data pursuant to the Stored Communications Act of 1986, which allows law enforcement to obtain communications records by demonstrating “specific and articulable facts” that the records are relevant to an ongoing investigation, rather than probable cause that a crime has been committed. The trial court denied Carpenter’s motion to suppress the records, and a jury convicted him of firearms violations and violations of the Hobbs Act. On appeal, Carpenter maintained that the acquisition of his cellular data without a warrant violated his Fourth Amendment rights, but the Sixth Circuit held that such a seizure did not constitute a “search” under the Fourth Amendment.  Carpenter petitioned to have the case heard by SCOTUS, which heard arguments in November 2017.

The Court issued its decision on June 22, 2018, with the court split 5–4 to reverse and remand the decision by the lower courts. In a very lengthy ruling, Chief Justice Roberts wrote the majority opinion, with associate Justices Ginsburg, Breyer, Sotomayor, and Kagan joining Roberts’ opinion. The majority determined that the third-party doctrine applied to telephone communications in Smith v. Maryland could not be applied to cellphone technology and ruled that the government must obtain a warrant in order to access historical cellphone records. Roberts argued that technology “has afforded law enforcement a powerful new tool to carry out its important responsibilities. At the same time, this tool risks Government encroachment of the sort the Framers [of the US Constitution], after consulting the lessons of history, drafted the Fourth Amendment to prevent.”

Roberts also considered that “detailed, encyclopedic and effortlessly” tracking a person by cell towers was similar to that of using a Global Positioning System (GPS) tracking device as determined by United States v. Jones. Roberts stressed that the decision is a very narrow ruling; it does not affect other parts of the third-party doctrine, such as banking records, nor does it prevent collection of cell tower data without a warrant in emergencies or for national security issues.

Justices Kennedy, Thomas, Alito, and Gorsuch each wrote dissenting opinions.  Justice Alito wrote in his dissent:

“I share the Court’s concern about the effect of new technology on personal privacy, but I fear that today’s decision will do far more harm than good. The Court’s reasoning fractures two fundamental pillars of Fourth Amendment law, and in doing so, it guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely.”

So, what do you think?  Does this ruling appropriately limit law enforcement use of private cell phone location data without a warrant or does it hamstring the ability for law enforcement to adequately investigate suspects?  Please let us know if 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.

Tinder Date Murder Case Highlights the Increasing Complexity of eDiscovery in Criminal Investigations: eDiscovery Trends

With things like social media, electronic purchases, GPS tracking, and the Internet of Things, a normal day in anyone’s life creates an in-depth data trail. So, it’s no surprise that more and more, electronic evidence plays a key component in criminal investigations. While eDiscovery technology is mostly used in the civil courts, namely because corporate and government organizations have more resources than municipal, county, and even state law enforcement agencies to conduct reviews of large data-sets, it’s still worthwhile to look at the varied ways electronically stored information (ESI) is used to help detectives piece together a chain of events in order to solve a crime.

In an article published in The Daily Beast this week, we find the seemingly mismatched couple, 51-year-old Aubrey Trail and 24-year-old Bailey Boswell, charged with the murder of a 24-year-old Nebraska woman, Sydney Loofe. The story echoes the Starkweather / Fugate crime spree throughout the same region 60 years ago, only this time digital evidence led investigators to the perpetrators.

Trail and Boswell were arrested as part of a gold coin theft racket in November, but after further investigation, are now charged with Loofe’s murder, who was last seen November 15th before going on a Tinder date with Boswell. Police found the remains of Loofe’s body in a field a few weeks later, and in the months that followed, used a wide variety of ESI, along with traditional forensics, to link Trail and Boswell to the murder. The list of evidence pieced together is remarkable from an eDiscovery point of view:

  • Tinder Profiles: 140 messages between Loofe and Boswell in the days before November 15th were pulled from their online dating profiles. The last was on Nov. 15 at 6:54 p.m., when Boswell said she’d arrived at Loofe’s apartment. Police also found that Boswell went by “Audrey” on her online-dating profile.
  • Snapchat Photo: Loofe sent a selfie to a friend via Snapchat on November 15th with the caption, “Ready for my date.”
  • Facebook Videos: Trail and Boswell both posted Facebook videos claiming innocence while police were looking for them. In one, Boswell said she was “Audrey on Tinder and a few other names because I have warrants.”
  • iPhone Reset: After her arrest, Boswell gave investigators permission to search her iPhone 7, which they found had been reset to factory default settings on November 17.
  • Cellphone Pings/GPS Locations: Loofe’s phone last pinged a cell tower near Wilber, where Boswell and Trail lived in a basement apartment. When detectives searched that residence, the landlord, who lived upstairs, “reported a strong odor of bleach coming from the basement.” Data from Boswell’s phone showed its location was “in close proximity to the area where the remains were discovered Dec. 16th.”
  • Security Video Footage: Security footage from a local Home Depot showed Trail and Boswell on Nov. 15 around 10:35 a.m., shopping for tools and supplies that could be used to cover up the crime.
  • Phone Calls from Jail: In two different phone calls, one to the Lincoln Journal Star and the other to the Omaha World-Herald, Trail gave different accounts, claiming he unintentionally killed Loofe in a sex game gone wrong.

All of this led to a confession from Trail, stating that he had killed Loofe, and then he and Boswell covered up the crime scene and disposed of the body.

Using electronic evidence to solve crimes is nothing new, but now more than ever, the digital footprint that individuals and organizations leave is staggering in its depth and variance. At the same time, it’s amazing how skilled investigators are using the raw data left behind in order to put together cases in both the criminal and civil courts. The common denominator with both then becomes the ability to preserve, collect, and review this data in a timely and affordable fashion, in order to get the facts as quickly and efficiently as possible.

So, what do you think?  How do you see the influx of new data sources affecting your eDiscovery practices and policies in the future?  Please let us know if 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.

Plaintiff is Able to Get Some Subpoenas for Personal Data Quashed, But Not All: eDiscovery Case Law

In Delgado v. Tarabochia, et al., No. C17-1822RSL (W.D. Wash. May 4, 2018), Washington District Judge Robert S. Lasnik granted in part and denied in part the plaintiff’s motion to quash subpoenas for personal phone records and bank records, finding that phone records before the plaintiff’s hand injury on the defendant’s fishing boat were “of vital importance to defendants’ theory of the case”, but that the need for pre-incident bank records was not proportional to the needs of the case and that, with regard to subpoenas of post-incident data, defendants were “fishing”.

I’ll pause a moment to let you enjoy the irony of that statement… :o)

Case Background

Anyway, the plaintiff injured his hand while on board the F/V JOYCE MARIE and sued the vessel and vessel owner(s) for Jones Act negligence and unseaworthiness, alleging that he lost his balance and his hand went through a plate glass window on the wheelhouse, causing severe injuries with continuing disabilities.  However, another crew member on board at the time of the incident claimed that the plaintiff was using heroin in the days leading up to the incident and was in the midst of a heated argument with his girlfriend when he punched through the window.  After the plaintiff left the vessel, defendants located a computer file supposedly created by the plaintiff, containing text messages, emails, and photographs dated October 2013 to July 2014 that seemed to reflect drug transactions and a volatile relationship, but the plaintiff (in his deposition) denied fighting with his girlfriend and denied punching through the wheelhouse window.  Reporting that he had no feeling in three of his fingers and his thumb and was in constant, severe pain, the plaintiff claimed he was entitled to damages of $3 million, but the defendant had surveillance video that seemed to contradict the plaintiff’s testimony regarding the extent and severity of his injuries.

The defendants issued three subpoenas for phone records from January 2014 to the present, including all account information, call and text message logs, and roaming data. They also issued two subpoenas for bank records for the same period, seeking detailed summaries of credit and debit card transactions, withdrawals, and deposits. The plaintiff seeks to quash all five subpoenas as irrelevant and an unwarranted burden on his privacy interests.

Judge’s Ruling

With regards to the pre-incident phone records, Judge Lasnik indicated that “defendants have identified a specific need to confirm events and authenticate communications that are directly relevant to a determination of whether defendants’ negligence and/or the vessel’s unseaworthiness caused plaintiff’s injuries. To the extent these records mirror the electronic files found on the vessel’s computer and corroborate the other crewman’s statements, they are of vital importance to defendants’ theory of the case. While much will be disclosed that has nothing to do with this case, plaintiff’s privacy interests do not outweigh the need to obtain relevant information regarding the cause of plaintiff’s injuries in this case where plaintiff says he is entitled to damages of $3,000,000.”

With regards to the pre-incident bank records, Judge Lasnik stated that “defendants offer no reason to suspect that these records will authenticate or corroborate the electronic files plaintiff left behind. Production of plaintiff’s pre-incident finances, including every purchase and every deposit, is unlikely to result in admissible evidence (there is no reason to suspect that plaintiff used a credit card to purchase heroin or that defendants would be able to identify such transactions from a list of charges or withdrawals). Because of its minimal relevance and the outsized burdens it would impose on plaintiff’s privacy interests, discovery of the pre-incident bank records is not proportional to the needs of the case.”

As for the post-incident phone and bank records, Judge Lasnik stated that “defendants are fishing” and granted the plaintiff’s motion to quash the subpoena for these records because the “balance of the benefits and burdens of these post-incident discovery requests are not in defendants’ favor: they are not prompted by any specific need for information and are likely to drive discovery and generate disputes that are wholly collateral to the primary issues in this case.”

So, what do you think?  Did the judge assess the relevancy and proportionality in this case correctly and were the defendants “fishing” for the post-incident records?  Tee-hee!  Please share 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.

Freedom of Information? Not Necessarily for Text Messages: eDiscovery Trends

What percentage of Freedom of Information Act (FOIA) requests actually result in receiving all of the information requested?  75 percent?  50 percent?  You might be surprised.  Apparently, according to a recent survey, one part of the problem could be the lack of capturing text messages within government organizations.

According to the 2018 Public Sector Text & Mobile Communications Survey from Smarsh, 70 percent of federal, state, county and city government organizations surveyed report allowing SMS/text for official business communication.  But, almost half of those (46 percent) are not formally capturing and retaining these messages.  There were 236 total respondents in the survey.

Here are some other interesting findings from the report:

  • The vast majority of agencies allow organizational email (97 percent) on mobile devices, but right behind it is SMS/text messaging, with 70 percent allowing it for official government business. Social channels Facebook and Twitter are the next most frequently cited, with 58 percent and 44 percent, respectively.
  • Two-thirds of surveyed organizations allow employees to use their own BYOD devices for official business, for those devices, only 35 percent of respondents are retaining SMS/text messages (as opposed to 62 percent for Corporate Owned Personally Enabled (COPE) devices).
  • The top four reasons SMS/Text records are NOT captured are: 1) Don’t currently have budget this year, 2) SMS/text isn’t required to be retained by law, 3) Waiting for Capstone/FOIA guidance, 4) Existing capture technologies are too complicated.
  • The majority of respondents, 62 percent or nearly 2/3, lacked confidence that they could provide specifically requested mobile text messages promptly if responding to a public records or litigation request.
  • Agencies with no retention solution in place have very little confidence in their ability to fulfill requests. 23 percent reported that if requested, it was unlikely they could produce SMS/text messages from their organizational leader at all.

When you hear these stats, you might be surprised the numbers aren’t higher.  Last year, Federal Freedom of Information Act (FOIA) litigation jumped 26 percent over the previous year. In 2018, that number is on track to increase again. While an average of 2.08 lawsuits were filed each day in 2017, 2018 has seen the average increase to 2.72 lawsuits per day.  Last year, there were 823,222 Federal FOIA requests – 78 percent of those requests yielded censored files or no records at all.  In other words, only 22 percent of FOIA requestors got everything they asked for.  22 percent!  And, the Federal government spent $40.6 million in legal fees defending its withholding of files in 2017.  Freedom of information isn’t free, apparently.

I guess it isn’t surprising that government agencies are struggling with the same challenges of collecting and keeping mobile device data that other organizations are.  Maybe we should conduct a webinar on the topic?  Does two weeks from today work for you?  :o)

So, what do you think?  Is your organization able to produce text messages from your employees if needed?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. — Happy Birthday, Carter!

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.

Plaintiff Argument for Failure to Produce Cell Phone Data in Wife’s Name is “Unpersuasive”: eDiscovery Case Law

In Ortiz v. Amazon.com LLC, et al, No. 17-cv-03820-JSW (MEJ) (N.D. Cal. May 25, 2018), California Magistrate Judge Maria-Elena James ordered the plaintiff, who failed to produce court-ordered cell phone records because the account was in his wife’s name and refused to provide her information, to provide defendant Golden State with his cell phone account holder’s name and address so that defendant could subpoena the cell phone records from her.  Judge James also ordered the plaintiff to appear for a deposition in San Francisco, as originally scheduled, instead of Los Angeles (where the plaintiff had moved).

Case Background

In this case on March 7, 2018, the Court ordered the plaintiff to produce his cell phone records to Golden State no later than April 6, 2018. The plaintiff stated these records were not in his possession or control, as the account for the phone records was in his non-party wife’s name.  The plaintiff claimed he had attempted to obtain the phone records by requesting them from the carrier, but was not authorized to do so, nor could he get them from his wife (the plaintiff didn’t explain why).  He did not inform Golden State that the cell phone records were in his wife’s name and thus unobtainable until April 27, 2018 – three weeks after the Court-ordered deadline for production.  The plaintiff also refused to provide his wife’s name and address to allow defendant Golden State to subpoena the records from her, despite his representations that he would do so by May 8 and 16.

Also, on January 25, 2018, defendant Golden State requested the plaintiff’s availability for deposition and, at the beginning of March, he confirmed his deposition would take place on April 23, 2018. On March 7, 2018, defendant Golden State served a Notice of Deposition that Plaintiff’s deposition would take place at defense counsel’s San Francisco office, but on April 19, 2018, Plaintiff cancelled the deposition because he moved to Los Angeles.

The plaintiff defendant Golden State filed two joint discovery dispute letters, from which the Court made its ruling.

Judge’s Ruling

In assessing the request for cell phone records, Judge James stated that “Plaintiff does not explain his delay in informing Golden State that the cell phone records are not in his possession or control. Plaintiff knew or should have known who is named on the account; he offers no reason why this information was not available to him prior to April 27. Plaintiff has known as early as September 18, 2017, and at the very latest, as of March 7, 2018, that he had to produce his phone records… Plaintiff states that, ‘[f]or personal reasons, Plaintiff wishes to maintain the details of his relationship status, and interactions with his wife, private.’…This argument is unpersuasive. By alleging Golden State failed to pay him for all hours worked and to provide him with meal and rest breaks, Plaintiff has placed his work day activities—including whether he made or received phone calls or text messages on his personal cell phone—at issue. Providing the account holder’s name and address reveals minimal details, if any, about Plaintiff’s marital status or interactions.”  As a result, Judge James ordered the plaintiff to provide defendant Golden State with his cell phone account holder’s name and address so that defendant could subpoena the cell phone records from her.

As for the deposition, Judge James ordered the deposition to be conducted in San Francisco, noting the fact that the plaintiff “did not inform Golden State that his relocation would cause difficulties until the eve of the deposition is not well taken” and rejecting the plaintiff’s proposed compromise to have one of Golden State counsel’s Los Angeles attorneys take the deposition in counsel’s Los Angeles office.  She also granted Golden State’s request for an order that “Plaintiff appear at his deposition before he can compel or proceed with depositions of Golden State’s witnesses”.

So, what do you think?  Do these seem like delay tactics or could the plaintiff have had a legitimate reason for failing to produce the cell phone records?  Please share 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.

Collecting Responsive ESI from Difficult Places: eDiscovery Webcasts

Happy June!  I don’t normally promote webcasts twice in one week, but this month’s webcast is a little earlier than normal.  What can I say, it’s family vacation season and my family has plans the last week of this month… :o)

Believe it or not, there was a time when collecting potentially responsive ESI from email systems for discovery was once considered overly burdensome. Now, it’s commonplace and much of it can be automated. But, that’s not where all of the responsive ESI resides today – much of it is on your mobile device, in social media platforms and even in Internet of Things (IoT) devices. Are you ignoring this potentially important data? Do you have to hire a forensics professional to collect this data or can you do much of it on your own?  We will discuss these and other questions in a webcast in a few weeks.

Wednesday, June 20th at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Collecting Responsive ESI from Difficult Places. In this one-hour webcast that’s CLE-approved in selected states, we will discuss what lawyers need to know about the various sources of ESI today, examples of how those sources of data can be responsive to litigations and investigations, and how lawyers may be able to collect much of this data today using intuitive applications and simple approaches. Topics include:

  • Challenges from Various Sources of ESI Data
  • Ethical Duties and Rules for Understanding Technology
  • Key Case Law Related to Mobile Devices, Social Media and IoT
  • Options and Examples for Collecting from Mobile Devices
  • Options and Examples for Collecting from Social Media
  • Examples of IoT Devices and Collection Strategies
  • Recommendations for Addressing Collection Requirements
  • Resources for More Information

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to know how to collect electronically stored information from difficult places, this is the webcast for you!

So, what do you think?  Do you feel like you know when and how to collect ESI from mobile devices, social media and IoT devices?  If not, register for our webcast!  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.

Former Employee Sanctioned for Lying Under Oath, Destruction of ESI: eDiscovery Case Law

In Heggen v. Maxim Healthcare Servs., Inc., No. 1:16-cv-00440-TLS-SLC (N.D. Ind. April 27, 2018), Indiana Magistrate Judge Susan Collins ruled that the plaintiff’s destruction of requested cellphone recordings, as well as lying under oath, were sanctionable under FRCP Rule 37.

Case Background

The plaintiff filed the case against her former employer – a provider of temporary medical staffing, home health care, and wellness services – with claims of sexual harassment and retaliation. The plaintiff stated under oath that she chose to leave these employers “voluntarily” because the two clients with whom she worked were going into a nursing home.

However, the defendant pointed out that records show that the plaintiff was terminated after she refused to discuss a complaint that the plaintiff stole $300 from a client under her care, as well as mismanagement of the client’s financial assets. A discovery request to the Indiana Department of Workforce Development revealed that the plaintiff had worked for Interim Health Care immediately prior to joining the defendant, even though she responded to the first request for production with a different former employer, and then stated a second employer during her deposition. Based on the records from Interim, the defendant claimed that the circumstances of the plaintiff’s departure from Interim were “strikingly similar” to the plaintiff’s time at the defendant, including that a patient’s medications went missing – the plaintiff then tested positive for the missing medications on a drug test, and the plaintiff failed to return to work after the complaint.

The clearest contention that the defendant brought is that the plaintiff destroyed key evidence in at least three different ways and this, along with the other actions by the plaintiff, the defendant contended was grounds for a dismissal sanction. The plaintiff testified at her deposition that she made about seven recordings of unidentified defendant employees and said these recordings supported her claims against the defendant, she also testified that the Equal Employment Opportunity Commission (“EEOC”) had the recordings, because she deleted the recordings from her cell phone since she “didn’t want them to have [her] phone lost and have them be out there.” She claimed she had emailed the recordings to the EEOC, but couldn’t find any copy of the emails transmitting the recordings. After sending the emails, she performed a factory reset of her phone (an older Apple model) that basically had “broke[n] down,” and that she was trying to get working again. The reset deleted all of the data stored on it, including the recordings.

She felt that emailing the recordings to EEOC was a form of preservation and “thought it was okay to get rid of them[.]” Copies of three of the recordings were found, and the plaintiff submitted transcripts of these recordings with her response brief, and she also provided a copy of the recordings and transcripts to the defendant. However, there was no explanation for the other missing recordings.

The defendant had sought the recordings from the plaintiff for months through traditional discovery and because it did not have the recordings when it deposed the plaintiff, it felt that resulted in prejudice against them. They also argued that there was a significant difference between original recordings and copies of recordings. What the plaintiff submitted appeared to be at least two different layers of recorded conversations: “an ongoing face-to-face interaction between individuals who are supposedly simultaneously listening to and participating in a different interaction by telephone, all recorded on top of each other.”  Also, because they were copies, there was no way to delve into the original metadata of the recordings. Further, while the original recordings were made on an iPhone, the files produced were in 3GP format, a format generally used by Android phones, raising even more questions.

Judge’s Ruling

Judge Collins ruled that the defendant’s failure under oath to disclose Interim as a prior employer and for her destruction of the original cell phone recordings was sanctionable. But noted that a sanction for discovery abuse must be “a proportionate response to the circumstances.”

Judge Collins stated, “The draconian sanction of dismissal is not presently warranted here. Rather, the present circumstances warrant the imposition of lesser sanctions in the form of a monetary penalty—that is, ordering Heggen to pay the reasonable expenses, including attorney’s fees, that Maxim incurred in filing the motion to compel [See FRCP Rule 37]. The Court has no reason, at least at this juncture, to conclude that the imposition of this monetary penalty would be fruitless. The Court will also consider a spoliation instruction upon a pretrial motion by counsel should this case go to trial. The motion for sanctions is otherwise denied. Heggen is duly warned that any additional discovery transgressions may result in further sanctions against her, up to and including dismissal of this case.”

So, what do you think?  Was the ruling correct or was a sanction of dismissal warranted in this case?  Please share 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.

Law Enforcement Has Found a New Way to Put a Finger on iPhone Evidence: eDiscovery Trends

A dead finger, that is.  Believe it or not, cops are now opening iPhones with dead people’s fingerprints.

A couple of days ago Sharon Nelson (on her excellent Ride the Lightning blog) covered a Forbes article that discussed a suspect who mowed down a group of people in his car, went on a stabbing spree with a butcher’s knife and was shot dead by a police officer on the grounds of Ohio State University.  To try to access the phone to learn more about the assailant’s motives, an FBI agent applied the bloodied body’s index finger to the iPhone found on the deceased suspect.

In that case, it didn’t work as the iPhone had gone to sleep and when reopened required a passcode.  But, this technique is working in many other cases.  Separate sources close to local and federal police investigations in New York and Ohio, who asked to remain anonymous as they weren’t authorized to speak on record, said it was now relatively common for fingerprints of the deceased to be depressed on the scanner of Apple iPhones, devices which have been wrapped up in increasingly powerful encryption over recent years. For instance, the technique has been used in overdose cases, said one source. In such instances, the victim’s phone could contain information leading directly to the dealer.

Not surprisingly, there are concerns about whether a warrant should be required. Greg Nojeim, senior counsel and director of the Freedom, Security and Technology Project at the Center for Democracy & Technology, said it’s possible in many cases there would be a valid concern about law enforcement using fingerprints on smartphones without any probable cause. “That’s why the idea of requiring a warrant isn’t out of bounds,” Nojeim added.

Think having an iPhone X that replaces the fingerprint security with facial recognition technology will keep law enforcement at bay?  Think again.  It could be an easier way into iPhones than Touch ID. Marc Rogers, researcher and head of information security at Cloudflare, told Forbes he’d been looking at Face ID in recent months and had discovered it didn’t appear to require the face of a living person to work – apparently the technology can be deceived simply using photos of open eyes or even only one open eye on the suspect.  “In that sense it’s easier to unlock than Touch ID – all you need to do is show your target his or her phone and the moment they glance it unlocks,” he stated.

Or open the eyes of the dead suspect.  Dead men tell no tales?  Maybe they do after all.

So, what do you think?  Should a warrant be required to access phones with fingerprint or facial recognition technology?  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.