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Preservation

Mobile Collection: It’s Not Just for iPhones Anymore, Part Four

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, DOS and DON’TS of a 30(b)(6) Witness Deposition.  Now, Tom has written another terrific overview regarding mobile device collection titled Mobile Collection: It’s Not Just for iPhones Anymore that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  The first part was last Thursday, the second part was Monday and the third part was Wednesday, here’s the fourth and final part.

Conclusions

So, when you think of smart phone collection be sure to ask what OS you going to encounter.  Android phones are market leaders both here in the US and worldwide and offer corporate archiving solutions that are second to none. Your litigation opponent might actually have the droid you are looking for.

And, why is that important?  Because we’re seeing more cases where mobile device data is relevant than ever.  As I mentioned in my Millennials series last summer, Americans send about 8.5 billion texts every day!  Texts and other mobile data are routinely relevant in just about every type of litigation case.

And, we’re certainly seeing more cases where mobile device data is figuring prominently in court rulings.  Here are some cases covered by eDiscovery Daily in just the past year regarding mobile devices and (in some cases) consideration of sanctions for failing to preserve mobile device data:

The good news is that you’ve now learned about some terrific resources to preserve that mobile device data and hopefully avoid sanctions in your own cases, regardless of whether the device is Apple or Android.

So, what do you think?  Are you having to increasingly address issues associated with mobile device discovery?  As always, 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 Rules on Status of “Functional Employee, Declines Sanctions as Premature: eDiscovery Case Law

In Digital Mentor, Inc. v. Ovivo USA, LLC, No. 2:17-cv-01935-RAJ (W.D. Wash. Feb. 4, 2020), Washington District Judge Richard A. Jones granted in part and denied in part the defendant’s motion to compel, ruling that the plaintiff had not shown that a consultant to the plaintiff met the criterion of being considered a “functional employee” for which all communications with the plaintiff could be considered privileged, but denying the defendant’s request for preclusion sanctions, determining those to be “premature”.

Case Background

In this case involving trademark and copyright infringement and breach of contract claims that the defendant created a “pirated” version of the plaintiff’s product, the parties had a discovery dispute stemming from William Chastain’s consulting role with the plaintiff.  The plaintiff claimed that Chastain was its “functional employee” and so his communications with the plaintiff were subject to attorney-client privilege or work product protection.  Chastain was purportedly involved in the negotiation, discussion and execution of the pertinent contracts and agreements at issue with the defendant, was a direct conduit of the plaintiff in the events leading up to this litigation and was never paid for his role and was never employed by the plaintiff.

The defendant disagreed, claiming that Chastain did not qualify as a “functional employee” and moved to compel the plaintiff to produce all documents relating to Chastain, including correspondence between Chastain, the plaintiff and/or its counsel; even documents identified DMI’s privilege log.  The defendant also sought to prohibit the plaintiff from relying upon any documentation including or relating to Chastain and any testimony from, or referring to, Chastain during hearings or trial and also sought reasonable fees and expenses in bringing the motion.

Judge’s Ruling

Noting that “as one district court indicates, ‘the dispositive question is the consultant’s relationship to the company and whether by virtue of that relationship [s]he possesses information about the company that would assist the company’s attorneys in rendering legal advice’”, Judge Jones stated: “When answered in the affirmative, the consultant is ‘in all relevant respects the functional equivalent of an employee’ and communications between corporate counsel and the consultant may be covered under attorney-client privilege.”

But, Judge Jones continued: “On the record presented, DMI has not shown that Chastain’s involvement meets this criterion. There is no documentation of Chastain’s duties vis-à-vis DMI or its corporate counsel, nor does the record demonstrate that Chastain had specialized knowledge such that counsel would rely on him to facilitate legal advice for the company…There is also little to indicate that communications between Chastain and DMI’s counsel were primarily of a legal, as opposed to a business, nature…Having found that DMI has not met its burden, the Court GRANTS Ovivo’s motion to the extent documents are only being withheld on this basis of privilege. Having found the ‘functional employee’ requirements not met, the Court will not analyze Ovivo’s claims of waiver.”

However, considering preclusion sanctions based on the defendant’s claim that Chastain destroyed relevant documents because (as the plaintiff stated) he “does not keep any emails and/or documentation as he has been a victim of corporate theft and hacking incidents in the past”, Judge Jones stated: “The Court cannot impose sanctions based on Ovivo’s allegations under Rule 37. Sanctions under Rule 37 are allowed only against a party that disobeys a court issued discovery order. However, the court’s inherent authority to impose sanctions for the wrongful destruction of evidence includes the power to exclude evidence that, given the spoliation, would ‘unfairly prejudice an opposing party.’…Although Chastain’s purported email practices seem particularly dubious, the Court agrees with DMI that Ovivo’s request for preclusion sanctions is premature. Ovivo has not presented any evidence in support of its spoliation theory other than Chastain’s failure to produce documents in response to its subpoena…Without evidence about what was purportedly destroyed, when it occurred, what extent DMI had any involvement, and any resulting prejudice, preclusion sanctions are inappropriate. The Court also declines to award attorney’s fees related to this motion.”

So, what do you think?  Is it premature to consider sanctions if the party acknowledges destroying relevant documents?  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.

Mobile Collection: It’s Not Just for iPhones Anymore, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, DOS and DON’TS of a 30(b)(6) Witness Deposition.  Now, Tom has written another terrific overview regarding mobile device collection titled Mobile Collection: It’s Not Just for iPhones Anymore that we’re happy to share on the eDiscovery Daily blog.  Enjoy!  And, BTW, Happy Birthday to my beautiful wife Paige! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  The first part was last Thursday and the second part was Monday, here’s the third part.

Google Vault and the Emphasis of Android Devices

During the same time period as when Google TakeOut hit the market, Google also created Google Vault in 2012, their web tool for preservation of data in the Google Suite. It’s easy and inexpensive but only covers some email archiving, searching, and exporting capabilities for Gmail. Unlike iOS however it has 3rd party add-ons that can securely archive Gmail messages, Gmail Notes, Appointments and some Calendar Items.

A Gartner review of many of these products notes how they quickly and easily integrate with Google Apps to make up for the deficiencies in Vault and allows archived data to be stored into one unified message archive. Some of them even can search, publish, and perform eDiscovery from the archive, which is in one central location.

So perhaps not the quick and easy solution offered by iTunes or iOS backup and, like O365, based on a web archive. But still a relatively easy and to create archives and now given the arrival of Google One, a variety of methods exist for handling Android smartphone data.

Why is all this emphasis on Android phones important? As I noted in the Introduction, it’s because Android market share is now bigger than Apple everywhere in the world. Again, while Apple iOS holds a large share of the smartphone operating systems’ market within the United States, Google Android remains the market leader with a 51.8% share as of September 2019.  Worldwide, Android has a 76% market share with iOS far behind at 22%. (Source, IDC Nov 2019)  Clearly, you’re not only as likely to need to preserve Android devices as you are iPhones, you’re more likely, possibly much more likely, to need to do so.

Apple, of course, registers strongly in actual smartphone sales because they sell the phone AND the operating system unlike Android systems which are fragmented among multiple phone manufacturers. But even here, Apple is not the market leader. Although their share of smartphone users in the US has risen roughly 20% since early 2012 and stood at 42% in Q3 2019, the combination of all Android phones at that time was 47%, led by Samsung with 25%. And that Apple growth surge in the United States goes against a global trend that has seen their market share of smartphone shipments drop to around 10 percent.

Samsung, known for consumer products worldwide including mobile devices and home entertainment systems, is the global leading smartphone vendor. Since 2012, the South Korean company has held a share of 20 to 30 percent in the smartphone market. In 2018, they shipped more than 292 million smartphones worldwide and by the third quarter of 2019, Samsung’s global market share was 21.8%.

Apple is not one to take these statistics lightly and is responding with a new cheap phone. Channel manufacturers, reported to be Hon Hai Precision Industry, Pegatron Corp. and Wistron Corp, are currently preparing their production lines and planning to start mass production next month with an official release expected in March.

A cheaper offering may help Apple compete better in price-competitive phone markets such as India and China. India, in particular, presents a substantial challenge for Apple which has a high number of Android rivals coming in at prices less than $200.  Still, Apple has set a goal of shipping more than 200 million units in 2020 and recovering some of that lost market share.

We’ll publish Part 4 – Conclusions – on Friday.

So, what do you think?  Are you having to increasingly address issues associated with mobile device discovery?  As always, 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.

Mobile Collection: It’s Not Just for iPhones Anymore, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, DOS and DON’TS of a 30(b)(6) Witness Deposition.  Now, Tom has written another terrific overview regarding mobile device collection titled Mobile Collection: It’s Not Just for iPhones Anymore that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  The first part was last Thursday, here’s the second part.

Mobile Collection and Preservation, Courtesy of Craig Ball

As I mentioned in the Introduction, Craig Ball has provided a lot of terrific information regarding preservation and collection of data from mobile devices.  These are terrific resources that everyone who deals with discovery of mobile devices should be aware of.  His original discussion about preservation of cell phone data was a 2017 article called Custodian-Directed Preservation of iPhone Content: Simple. Scalable. Proportional and, as the title denotes, dealt with iPhones. It proposed a wonderfully simple way to preserve iPhone data using iTunes. Although it did not preserve email, content from iTunes or iBooks, some data stored in iCloud and data from Apple Pay, Activity, Health or Keychain. Additionally, it offered several advantages in Craig’s mind to an iCloud backup, primarily that it took less time and you could choose not to encrypt the backup.

I disagreed with the last point but it’s a minor quibble and not worth discussing here because, well, all good things must come to an end and Apple last year decided to end iTunes. So Craig wrote another article entitled How Will We Back Up iPhones Without iTunes? in which he noted the good thing that ended had morphed into a better thing. As he explained, “In fact, preserving iPhones may be easier for Mac users as Apple is shifting the backup tool into the Finder app.  You’ll do exactly the same thing I wrote about but Mac users with Catalina won’t even need to use iTunes to preserve mobile evidence.  It’ll be built in.”

In between those two articles, Craig also wrote a piece called Mobile to the Mainstream which discussed all the various data types on a smart phone and provided a Mobile Evidence Scorecard, which rated the data types by ease of collection, ease of review, potential relevance and whether they should be part of a routine backup collection process. Everyone should have this card.  Here is a representation of it, split into a front and back section.

And, last but not least, Craig compiled all of his accumulated wisdom about mobile evidence (well, iPhone mobile evidence) into a white paper called Mobile to the Mainstream: Preservation and Extraction of iOS Content for E-Discovery. I should note that the title violated one of Craig’s most often discussed issues with searching ESI.  But search is also a topic for another day.

Craig finally turned to Androids last fall. Although that was actually not his first mention of the “other” OS, that came in a 2015 paper Opportunities and Obstacles: E-Discovery from Mobile Devices.  But a column in this venue pointed out the most recent advances in Android collection.

Called Craig Ball is “That Guy” Who Keeps Us Up to Date on Mobile eDiscovery Trends: eDiscovery Best Practices, Doug Austin noted how Craig discussed Google’s recently expanded offering of “cheap-and-easy” online backup of Android phones, including SMS and MMS messaging, photos, video, contacts, documents, app data and more.  In that discussion, Craig stated: “This is a leap forward for all obliged to place a litigation hold on the contents of Android phones — a process heretofore unreasonably expensive and insufficiently scalable for e-discovery workflows.  There just weren’t good ways to facilitate defensible, custodial-directed preservation of Android phone content.  Instead, you had to take phones away from users and have a technical expert image them one-by-one.”

Now as a character in the movie Independence Day once said …. “that’s not ENTIRELY correct.” Craig was referring to Google One, the recent addition intended to improve archiving capabilities.  But as Google notes on their own website. “We’ve taken the standard Android backup (my emphasis added) that includes texts, contacts, and apps and we’re giving you even more.”

The new automatic phone backup also addresses photos, videos, and multimedia messages (MMS) and it can all be done from a Google One app.

But backups did exist before this. Craig himself mentions Google TakeOut, which has long allowed users of Google products, such as YouTube and Gmail, to export their data to a downloadable archive file. Started with some basic services in 2011, TakeOut expanded to include Gmail and Google Calendar in 2013. By 2016, Google had grown the service to include search history and Wallet details and since then, they have also added Google Hangouts to the Takeout service. In all cases, TakeOut does not delete user data automatically after exporting.

We’ll publish Part 3 – Google Vault and the Emphasis of Android Devices – on Wednesday.

So, what do you think?  Are you having to increasingly address issues associated with mobile device discovery?  As always, 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.

Mobile Collection: It’s Not Just for iPhones Anymore

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, DOS and DON’TS of a 30(b)(6) Witness Deposition.  Now, Tom has written another terrific overview regarding mobile device collection titled Mobile Collection: It’s Not Just for iPhones Anymore that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

Most of the talk about retrieving data from mobile devices has centered on iPhones and other Apple devices.  And no small reason for that is that most of the discussion on the topic has come from Craig Ball, who is, like many attorneys, an Apple guy.

But, iPhones are not the only mobile devices for which data collection is necessary.  In fact, they’re not even the most popular devices – by far.  Android market share is now bigger than Apple everywhere in the world. Although Apple iOS holds a large share of the smartphone operating systems’ market within the United States, Google Android remains the market leader with a 51.8% share as of September 2019.  Worldwide, Android has a 76% market share with iOS far behind at 22% (Source, IDC Nov 2019)

So, you’re just as likely – even more likely – to need to collect data from Android devices than from Apple devices, especially outside the US.

With that in mind, in this paper, we will take a look at mobile device collection topics, including:

  1. Mobile Collection and Preservation, Courtesy of Craig Ball
  2. Google Vault and the Emphasis of Android Devices
  3. Conclusions

We’ll publish Part 2 – Mobile Collection and Preservation, Courtesy of Craig Ball – next Monday.

So, what do you think?  Are you having to increasingly address issues associated with mobile device discovery?  As always, 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 Finds Plaintiffs’ Sanction Request To Be Too Late and Too Little: eDiscovery Case Law

Tom O’Connor and I had a great webcast yesterday regarding Important eDiscovery Case Law Decisions of 2019 and Their Impact on 2020, with plenty of interaction from the audience in the form of great questions and additional information!  So, how do we follow that up?  By continuing to build on this year’s case law collection.  :o)

In Nguyen v. Costco Wholesale Corp., No. 9:19-cv-80393 (S.D. Fla. Jan. 27, 2020), Florida Magistrate Judge William Matthewman denied the plaintiffs’ motion for sanctions for alleged spoliation of a video that the plaintiffs claimed showed an alleged slip-and-fall by plaintiff Chi Nguyen, finding that the defendant “did not have an affirmative duty to preserve the allegedly spoliated video” for a nearly two year period from the date of the fall to the date of the filing of the lawsuit and that the plaintiffs “fail to cite to a shred of evidence in support” in support of the claim that the video showed the slip and fall.

Case Background

In this case, the plaintiffs had previously filed a motion to compel the defendant to produce two photos taken by one of its employees as well as in-store surveillance videos that the defendant had claimed work-product privilege over and listed on its privilege log.  The defendant failed to timely respond to the plaintiffs’ motion, and the Court ordered the defendant to show cause as to why the motion should not be granted, to which the defendant responded that it had inadvertently failed to respond to the plaintiffs’ motion and that its “intent was always” to produce the video and photographs that the plaintiffs requested. Ultimately, the plaintiffs decided their Motion to Compel was moot and the Court denied the plaintiffs’ motion to compel accordingly.

However, the plaintiffs contended that the defendant never produced the “video showing the area” where plaintiff Chi Nguyen allegedly slipped and fell, arguing that the defendant improperly erased the video, resulting in “extreme irreversible prejudice” to the plaintiffs.  The defendant maintained that “there is no such video because no cameras in the store show this area” and that the plaintiffs never made a written request to preserve video information and thus it “had no duty to preserve any videos at all, much less video from a distant camera that did not capture the accident[.]”  The defendant produced affidavits in support of its position, but the plaintiffs produced no such affidavit or other evidence.

Judge’s Ruling

In considering the plaintiffs’ motion, Judge Matthewman observed: “Plaintiff Chi Nguyen originally brought her suit against Defendant in Florida state court on January 17, 2019…Her alleged slip-and-fall occurred on January 25, 2017, nearly two years prior to the filing of the Complaint.”  As a result, he ruled that “Defendant did not have an affirmative duty to preserve the allegedly spoliated video from the date of the fall (January 25, 2017) to the date of the filing of this lawsuit (January 17, 2019), a period of nearly two years after Plaintiff Chi Nguyen’s alleged slip-and-fall. Plaintiffs have provided no evidence that Defendant was given notice prior to the filing of this suit that Plaintiffs intended to file an action against it related to the alleged slip-and-fall. Moreover, merely because Plaintiff Chi Nguyen fell at Defendant’s store, absent additional facts, does not mean that Defendant reasonably anticipated litigation on the date of the alleged fall. No duty to preserve arose until after this lawsuit was served on Defendant. Without a duty to preserve the allegedly spoliated video, Plaintiffs’ motion for sanctions necessarily fails.”

Judge Matthewman also stated in denying the plaintiffs’ motion: “Even assuming Defendant did have a duty to preserve the allegedly spoliated video (which it did not), sanctions would still not be warranted unless the allegedly spoliated ESI was lost because Defendant failed to take reasonable steps to preserve it”, finding that “Defendant did not fail to take reasonable steps to preserve the allegedly spoliated evidence because the video was not ‘unique, relevant evidence that might be useful to’ Plaintiffs.”

So, what do you think?  What should constitute “reasonable anticipation of litigation” in a slip and fall case?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

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

Court Denies Plaintiff’s Motion for Sanction for Spoliation of Audio Recording: eDiscovery Case Law

In Montoya v. Loya Ins., No. 18-590 SCY/JFR (D.N.M. Oct. 24, 2019), New Mexico Magistrate Judge Steven C. Yarbrough denied the plaintiff’s Motion For Sanctions For Spoliation Of Audio Recording Evidence, after a jury trial in favor of the plaintiff, finding that there was minimal prejudice to the plaintiff and that “there is no dispute over the relevant contents of the telephone conversation” which was recorded.

Case Background

In this case involving a bad faith claim against the plaintiff’s insurance company for its handling of her claim under her uninsured motorist benefits, the defendant took a recorded statement from the plaintiff in the course of its investigation but lost it.  The plaintiff was forced to file suit against the defendant in state court in February 2017 and the jury rendered a verdict in favor of the plaintiff against the defendant in January 2018 in the amount of $23,742.82.  Despite that, the plaintiff sought a finding of liability against the defendant as a sanction for its failure to preserve the recorded statement the defendant took from the plaintiff during its investigation of her claim.

Judge’s Ruling

Considering the plaintiff’s claim, Judge Yarbrough stated: “The Court agrees that the loss of the recording caused Plaintiff some prejudice, as it prevented her from obtaining a full transcript of the conversation rather the parts that Ms. Boneo chose to record in her notes. This prejudice, however, is minimal.”

Continuing, Judge Yarbrough provided three reasons for this, as follows:

“First, Plaintiff herself was part of the conversation. Thus, the loss of the recording did not deny her access to the conversation. Plaintiff therefore retains the ability to testify about conversation despite the loss of the recording…Second, Plaintiff was able to depose the adjustor and thereby obtain the adjuster’s testimony about the conversation. Because Plaintiff has independent personal knowledge of this conversation that she was part of and because Plaintiff obtained the adjuster’s notes and testimony about the conversation, Plaintiff has the means to adequately prepare for trial… Third, and most importantly, there is no dispute over the relevant contents of the telephone conversation. Plaintiff testified in her deposition that she agreed with the substance of Ms. Boneo’s testimony regarding the contents of Plaintiff’s statement.”

As a result, Judge Yarbrough stated: “Any prejudice Plaintiff might suffer from not having a recording of the statement is slight and does not justify the only relief Plaintiff requests: a finding of liability against Defendant. Plaintiff’s Motion For Sanctions For Spoliation Of Audio Recording Evidence (Doc. 75) is therefore DENIED.”

So, what do you think?  Should the judge have penalized the defendant for losing the recording?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

It’s our last post of the year, so I want to thank all of you for reading our blog all year, attending our webcasts and for all of the support!  Can’t believe we are in the midst of our tenth year and your support has made it possible to keep producing blog posts daily.  In this holiday season, I’m very thankful for your support and also thankful for the love of my wife, Paige, and our kids, Kiley and Carter.  Happy holidays and see you in 2020!

:o)

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 Infers Bad Faith for Plaintiffs Use of Ephemeral Messaging App: eDiscovery Case Law

We’re catching up on notable cases from earlier in the year.  Here’s one that’s notable regarding the use of ephemeral messaging and spoliation sanctions.

In Herzig v. Arkansas Foundation for Medical Care, Inc., No. 2:18-CV-02101 (W.D. Ark. July 3, 2019), Arkansas District Judge P.K. Holmes, III indicated his belief that the use and “necessity of manually configuring [the messaging app] Signal to delete text communications” on the part of the plaintiffs was “intentional and done in bad faith”.  However, Judge Holmes declined to consider appropriate sanctions, ruling that “in light of the [defendant’s] motion for summary judgment, Herzig and Martin’s case can and will be dismissed on the merits.”

Case Background

In this case where the plaintiffs alleged unlawful termination due to age discrimination, the parties conferred and agreed that the defendant might request data from the plaintiffs’ mobile phones and that the parties had taken reasonable measures to preserve potentially discoverable data from alteration or destruction.  In July 2018, the defendant served requests for production on the plaintiffs and, in September 2018, Plaintiffs Brian Herzig and Neal Martin produced screenshots of parts of text message conversations from Martin’s mobile phone, including communications between Herzig and Martin, but nothing more recent than August 20, 2018, even after a motion to compel.

After the August production, Martin installed the application Signal (which allows users to send and receive encrypted text messages accessible only to sender and recipient, and to change settings to automatically delete these messages after a short period of time) on his phone.  Herzig had done so while working at the defendant.  Herzig and Martin set the application to delete their communications and, as a result, disclosed no additional text messages to the defendant, which was unaware of their continued communication using Signal until Herzig disclosed it in his deposition near the end of the discovery period.  The defendant filed a motion for dismissal or adverse inference on the basis of spoliation.

Judge’s Ruling

In assessing the defendant’s motion, Judge Holmes stated that “Herzig and Martin had numerous responsive communications with one another and with other AFMC employees prior to responding to the requests for production on August 22, 2018 and producing only some of those responsive communications on September 4, 2018. They remained reluctant to produce additional communications, doing so only after AFMC’s motion to compel. Thereafter, Herzig and Martin did not disclose that they had switched to using a communication application designed to disguise and destroy communications until discovery was nearly complete. Based on the content of Herzig and Martin’s earlier communications, which was responsive to the requests for production, and their reluctance to produce those communications, the Court infers that the content of their later communications using Signal were responsive to AFMC’s requests for production. Based on Herzig and Martin’s familiarity with information technology, their reluctance to produce responsive communications, the initial misleading response from Martin that he had no responsive communications, their knowledge that they must retain and produce discoverable evidence, and the necessity of manually configuring Signal to delete text communications, the Court believes that the decision to withhold and destroy those likely-responsive communications was intentional and done in bad faith.”

However, Judge Holmes also stated: “This intentional, bad-faith spoliation of evidence was an abuse of the judicial process and warrants a sanction. The Court need not consider whether dismissal, an adverse inference, or some lesser sanction is the appropriate one, however, because in light of the motion for summary judgment, Herzig and Martin’s case can and will be dismissed on the merits.”  As a result, the requested sanctions were denied as moot.

So, what do you think?  Should use of an ephemeral messaging app when a duty to preserve attaches lead to significant 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.

Despite Email from Defendants Instructing to Destroy Evidence, Court Declines Sanctions: eDiscovery Case Law

In United States et al. v. Supervalu, Inc. et al., NO. 11-3290 (C.D. Ill. Nov. 18, 2019), Illinois District Judge Richard H. Mills, despite an email produced by the defendants with instructions to their pharmacies to destroy evidence, denied the relators’ motion for sanctions, stating: “Upon reviewing the record, the Court is unable to conclude that Defendants acted in bad faith. If the evidence at trial shows otherwise and bad faith on the part of the Defendants is established, the Court can revisit the issue and consider one or both of the sanctions requested by the Relators or another appropriate sanction.”

Case Background

In this case, the defendants produced in discovery a January 27, 2012 email from a pharmacy district manager for 33 Shop ‘n Save pharmacies, instructing those pharmacies to “throw away all your competitor’s price matching lists and get rid of all signs that say we match prices.” The email was sent seven days after the January 20, 2012 government agents’ visits to the defendants’ pharmacies, including one of the district manager’s pharmacies, five days after the manager learned of the visit by a Special Agent with the Department of Health and Human Services, Office of Inspector General (“HHS-OIG”), and three days after the defendants received a subpoena from the Government requesting documents regarding the price match program.

The relators further alleged it appeared that another district manager ordered the destruction of signage promoting the defendants’ price match program after visits by government agents and service of the HHS-OIG subpoena and also alleged the defendants waited until almost the end of discovery to produce the January 27, 2012 email.  As a result, they requested the entry of an Order imposing appropriate sanctions against the defendants for what they alleged was (1) Defendants’ failure to timely issue a litigation hold; (2) the intentional destruction of material evidence relating to defendants’ price match program; and (3) their subsequent efforts to conceal and obstruct discovery of their spoliation of evidence, including the wrongful withholding of material evidence of the spoliation until just days before the close of discovery in this case.

The defendants, in turn, claimed (1) they timely issued a litigation hold in this matter; (2) did not intentionally destroy material evidence; and (3) did not attempt to conceal and obstruct discovery of any alleged spoliation of evidence.  The Defendants claimed they issued three litigation holds: (1) one to individuals in the corporate business department on January 30, 2012; (2) one to all Pharmacy District Managers on February 20, 2012; and (3) one to the corporate marketing and advertising executives on March 15, 2012.  Alleging there were inconsistencies in both the number and timing of the litigation holds between defendant declarations, the relators asked the Court for an in camera review of the three litigation holds noted above.

Judge’s Ruling

Judge Mills, in noting that “A showing of bad faith—like destroying evidence to hide adverse information—is a prerequisite to imposing sanctions for missing evidence”, ruled as follows:

“The Court does not believe that an in camera review of the Defendants’ litigation holds is necessary at this time. At this time, the Court does not believe that sanctions are warranted based on the Defendants’ alleged failure to timely issue a litigation hold, their intentional destruction of evidence relating to the price match program, or their efforts to conceal and obstruct discovery of the spoliation of evidence. Upon reviewing the record, the Court is unable to conclude that Defendants acted in bad faith. If the evidence at trial shows otherwise and bad faith on the part of the Defendants is established, the Court can revisit the issue and consider one or both of the sanctions requested by the Relators or another appropriate sanction.

Ergo, the Relators’ motion for sanctions [d/e 205] is DENIED.”

So, what do you think?  Do the defendants’ actions seem to be in bad faith or was the Court’s ruling appropriate?  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.

When Litigation Hits, The First 7 to 10 Days is Critical: eDiscovery Throwback Thursdays

Here’s our latest blog post in our Throwback Thursdays series where we are revisiting some of the eDiscovery best practice posts we have covered over the years and discuss whether any of those recommended best practices have changed since we originally covered them.

This post was originally published on June 28, 2012, when eDiscovery Daily was less than two years old.  This post has already been revisited a couple of times since and has been referenced in a handful of webcasts as well.  It’s still good advice today.  Enjoy!

When a case is filed (or even before, if litigation is anticipated then), several activities must be completed within a short period of time (often as soon as the first seven to ten days after filing) to enable you to assess the scope of the case, where the key electronically stored information (ESI) is located and whether to proceed with the case or attempt to settle with opposing counsel.  Here are several of the key early activities that can assist in deciding whether to litigate or settle the case.

Activities:

  • Create List of Key Employees Most Likely to have Documents Relevant to the Litigation: To estimate the scope of the case, it’s important to begin to prepare the list of key employees that may have potentially responsive data. Information such as name, title, e-mail address, phone number, office location and where information for each is stored on the network is important to be able to proceed quickly when issuing hold notices and collecting their data.
  • Issue Litigation Hold Notice and Track Results: The duty to preserve begins when you anticipate litigation; however, if litigation could not be anticipated prior to the filing of the case, it is certainly clear once the case if filed that the duty to preserve has begun. Hold notices must be issued ASAP to all parties that may have potentially responsive data.  Once the hold is issued, you need to track and follow up to ensure compliance.  Here are a couple of recent posts regarding issuing hold notices and tracking responses.
  • Interview Key Employees: As quickly as possible, interview key employees to identify potential locations of responsive data in their possession as well as other individuals they can identify that may also have responsive data so that those individuals can receive the hold notice and be interviewed.
  • Interview Key Department Representatives: Certain departments, such as IT, Records or Human Resources, may have specific data responsive to the case. They should also have certain processes in place for regular destruction of “expired” data, so it’s important to interview them to identify potentially responsive sources of data and stop routine destruction of data subject to litigation hold.
  • Inventory Sources and Volume of Potentially Relevant Documents: Potentially responsive data can be located in a variety of sources, including: shared servers, e-mail servers, employee workstations, employee home computers, employee mobile devices (including bring your own device (BYOD) devices), portable storage media (including CDs, DVDs and portable hard drives), active paper files, archived paper files and third-party sources (consultants and contractors, including cloud storage providers). Hopefully, the organization already has created a data map before litigation to identify the location of sources of information to facilitate that process.  It’s important to get a high-level sense of the total population to begin to estimate the effort required for discovery.
  • Plan Data Collection Methodology: Determining how each source of data is to be collected also affects the cost of the litigation. Are you using internal resources, outside counsel or a litigation support vendor?  Will the data be collected via an automated collection system or manually?  Will employees “self-collect” any of their own data?  Answers to these questions will impact the scope and cost of not only the collection effort, but the entire discovery effort.

These activities can result in creating an inventory of potentially responsive information and help in estimating discovery costs (especially when compared to past cases at the same stage) that will help in determining whether to proceed to litigate the case or attempt to settle with the other side.

So, what do you think?  How quickly do you decide whether to litigate or settle?  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.