Close
Enter your
text here

Social Technology

Plaintiff Receives Adverse Inference Sanction for Deleting Facebook Profile – eDiscovery Case Law

Unlike last week’s case law summary about a case where a request for social media data was denied, this week’s case law summary relates to sanctions for deleting a social media data profile.

In Gatto v. United Air Lines, Inc., No. 10-cv-1090-ES-SCM, (D.N.J. Mar. 25, 2013), New Jersey Magistrate Judge Steven C. Mannion issued an adverse inference sanction against the plaintiff for failing to preserve data due to the fact that he either, deactivated his Facebook account and allowed the account to be automatically deleted after fourteen days, or that he deleted the account outright.  Judge Mannion denied the defendant’s request for attorney’s fees and costs for “the time and effort it was forced to expend in an effort to obtain discovery”.

Case Background

In this personal injury action, a ground operations supervisor alleged injuries after vehicles operated by the defendants did “crash into him”.  The defendants served a production request to the plaintiff in July 2011 which included a request for documents and information related to social media accounts maintained by the plaintiff.  In November 2011, the plaintiff provided the defendants with signed authorizations for the release of information from sites such as eBay and PayPal, but did not include an authorization for the release of records from Facebook.  In a settlement conference in December 2011, the judge ordered the plaintiff to execute an authorization for the release of documents and information from Facebook and the plaintiff agreed to change his password and provide it to the defendants.

However, the parties disputed whether it was agreed that defense counsel would directly access the plaintiff’s Facebook account.  The defendants subsequently accessed the account and the plaintiff received an alert from Facebook that his account was logged onto from an unfamiliar IP address.  After, in January 2012, the plaintiff’s counsel agreed to download the Facebook account information and provide a copy to the parties, it was determined that the plaintiff’s Facebook account had been deactivated back on December 16, 2011 (after he received the alert from Facebook), and that all of the plaintiff’s account data was lost.  As a result, the defendants requested the adverse inference instruction and monetary sanctions.

Judge’s Evaluation and Ruling

Judge Mannion noted four factors in considering an adverse inference instruction sanction:

  1. the evidence was within the party’s control;
  2. there was an actual suppression or withholding of evidence;
  3. the evidence was destroyed or withheld was relevant to the claims or defenses; and
  4. it was reasonably foreseeable that the evidence would be discoverable.

Judge Mannion stated, “Here, the deletion of Plaintiff’s Facebook account clearly satisfies the first, third, and fourth of the aforementioned factors.  Plaintiff’s Facebook account was clearly within his control, as Plaintiff had authority to add, delete, or modify his account’s content…It is also clear that Plaintiff’s Facebook account was relevant to the litigation.”  With regard to the second factor and the plaintiff’s claim that the deletion was unintentional, Judge Mannion ruled that “Even if Plaintiff did not intend to permanently deprive the defendants of the information associated with his Facebook account, there is no dispute that Plaintiff intentionally deactivated the account. In doing so, and then failing to reactivate the account within the necessary time period, Plaintiff effectively caused the account to be permanently deleted.”  Finding all four factors satisfied, Judge Mannion granted the adverse inference instruction sanction.  With regard to the request for fees and costs, Judge Mannion ruled that “such a decision is left to the discretion of the court” and denied the request.

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

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

Yet Another Request for Facebook Data Denied – eDiscovery Case Law

We’ve seen several cases where social media data was requested – with some requests granted (including this one, this one, this one and this one) and other requests denied (including this one, this one, this one and this one).  Here is a recent case where the request was denied.

In Potts v. Dollar Tree Stores, Inc., No. 3:11-cv-01180, (D. MD Tenn. Mar. 20, 2013), Tennessee District Judge William Haynes ruled that the defendant “lacks any evidentiary showing that Plaintiff’s public Facebook profile contains information that will reasonably lead to the discovery of admissible evidence” and, therefore, denied the defendant’s motion to compel regarding same.

In this harassment and discrimination case, the defendant, after serving requests for production on the plaintiff in April 2012, deposed the plaintiff on February 7 of this year, where she testified that she and her counsel possessed several other documents that they did not produce for the defendant.  The defendant filed a motion to compel several types of data including “Facebook and/or other social media data”.  Since the motion to compel, the plaintiff produced the following items:

  • Plaintiff’s day planner;
  • 8-10 pages of documentation concerning “write-ups” and “store visits” from Plaintiff’s employment at the Dollar Tree Store;
  • All saved or exchanged emails between Plaintiff, Trowery and/or any other representatives of Dollar Tree, or involving anything relevant to Plaintiff’s claim in Plaintiff’s possession, including the email containing a draft of Plaintiff’s statement to the EEOC in support of Trowery.

With regard to the request for Facebook data, the plaintiff objected, citing “other court’s holdings that the discovery of Facebook is allowed only where “the defendant makes a threshold showing that publicly available information on [Facebook] undermines the Plaintiff’s claims.”

Judge Haynes noted that while the Sixth Circuit has not yet ruled on the scope of discovery of private Facebook pages, other courts hold that:

“[M]aterial posted on a `private Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with Rule 26(b) . . . [and decisional law] . . . there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engaged in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.”

In this case, Judge Haynes ruled that “The Defendant lacks any evidentiary showing that Plaintiff’s public Facebook profile contains information that will reasonably lead to the discovery of admissible evidence…Thus, the Court concludes that Defendant has not made the requisite showing for full access to Plaintiff’s private Facebook or other social media pages.”

The defendant also requested reasonable attorneys’ fees incurred in preparing the motion to compel, but Judge Haynes ruled “Given that Plaintiff had justifiable reasons for her discovery objections, the Court concludes that Defendant is not entitled to attorneys’ fees for its motion to compel.”

So, what do you think?  Was the judge correct to deny the Facebook request?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Defendants Sanctioned, Sort Of, for Failure to Preserve Text Messages – eDiscovery Case Law

In Christou v. Beatport, LLC, Civil Action No. 10-cv-02912-RBJ-KMT, (D. Colo. Jan. 23, 2013), Colorado District Judge R. Brooke Jackson ruled that the plaintiffs could introduce evidence at trial to show the defendants failure to preserve text messages after the key defendant’s iPhone was lost.  However, the judge also ruled that the defendants could present “evidence in explanation…and argue that no adverse inference should be drawn”.

The defendant had worked for the plaintiff in his Denver nightclubs booking disc jockeys and received both financial and promotional support from the plaintiff in launching an online marketplace (Beatport) for promoting and selling Electronic Dance Music.  Beatport became enormously successful and grew to become the largest online site that caters essentially exclusively to producers and consumers of Electronic Dance Music.  When the plaintiff left the defendant’s employment, he went on to found his own competing nightclub in Denver and the plaintiff claimed that the defendant has been threatening A-List DJ’s that their tracks will not be promoted on Beatport if they perform in the plaintiff’s clubs.

When the case was filed, plaintiffs served a litigation hold letter on the defendants, directing them to preserve several categories of documents, including text messages. However, defendants took no steps to preserve the text messages on the plaintiff’s iPhone, but did not produce any text messages in response to plaintiffs’ first discovery requests served in May 2011. The defendant indicated that he lost his iPhone in August 2011, and with it any text messages saved on it. Plaintiffs contended that this “spoliation” of evidence should be sanctioned by an adverse jury instruction.  The defendants noted that Roulier testified that he did not use text messages to book DJ’s and argued that “it is sheer speculation” that his text messages contained relevant evidence, also noting that they responded fully to the May 2011 discovery, indicating that there was nothing responsive in the text messages.

Noting that the defendant’s testimony that he did not use text messages to book DJ’s was “hardly proof that his text messages did not contain relevant evidence”, Judge Jackson also noted that “although defendants state that defendants ‘found no responsive text messages,’ they do not indicate that defense counsel reviewed Mr. Roulier’s text messages”.

Noting that “Spoliation sanctions are proper when ‘(1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.’”, Judge Jackson stated that “Defendants had a duty to preserve Mr. Roulier’s text messages as potential evidence, but they did not do it. Those text messages, few as they might have been, should have been preserved and either provided to the plaintiffs or potentially made the subject of further proceedings before the Court.”

Nonetheless, Judge Jackson found “no basis to assume that the loss of the phone was other than accidental, or that the failure to preserve the text messages was other than negligent” – therefore, the judge found an adverse jury instruction to be “too harsh”.  Instead, Judge Jackson ordered that “plaintiffs will be permitted to introduce evidence at trial…of the litigation hold letter” and defendant’s “failure to preserve Mr. Roulier’s text messages”. The defendants were allowed to “present evidence in explanation, assuming of course that the evidence is otherwise admissible, and argue that no adverse inference should be drawn.”

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

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

Judges and Social Media Don’t Mix Either – eDiscovery Trends

As a graduate of Baylor University, I thought I would have found a way to work last year’s Heisman Trophy winner, Baylor’s own Robert Griffin III, into a blog post before this year’s Heisman winner, but this story involving Johnny Manziel is too good to pass up as an example of how pervasive social media has become in our daily lives and how it can impact the legal process.

A while back, we published a post called eDiscovery Trends: Jurors and Social Media Don’t Mix, where we reported on a case of juror misconduct when one of the jurors actually attempted to “Friend” one of the defendants on Facebook.  Apparently, judges aren’t immune to judicial slip ups on Facebook either.

Manziel has been regularly in the news lately, both for his stellar play on the football field (deservedly becoming the first freshman ever to win college football’s top individual award) and his activities off the field.  According to the Bleacher Report, he received a speeding ticket this past weekend while traveling through Ennis, Texas.  It happens.  And, if it were you or me, nobody would give it a second thought (or know about it unless we told them).  However, Judge Lee Johnson, the judge who saw the ticket come in, decided to post on his Facebook page about it, as follows:

“Too funny. So it seems a certain unnamed (very) recent Heisman Trophy winner from a certain unnamed ‘college’ down south of here got a gift from the Ennis P.D. while he was speeding on the 287 bypass yesterday. It appears that even though the OU defense couldn’t stop him, the City of Ennis P.D. is a different story altogether. Time to grow up/slow down young ‘un. You got your whole life/career ahead of you. Gig Em indeed.”

He then followed up with a correction, saying: “I mean to say ‘allegedly speeding,’ my bad.”

Now, according to a report by Yahoo! Sports, Ennis City Manager Steve Howerton has since apologized for the comments, calling them “insensitive and inappropriate,” and the city has reprimanded Johnson in the wake of his post.  The report also notes that “Howerton said Johnson has worked in public service for 25 years and had an unblemished record. Howerton said Johnson attempted to apologize to Manziel and that the incident is still under investigation.”

It’s a minor case involving a minor infraction, but it still illustrates how anybody can get carried with social media and impact the legal system or their business, as All Pro Houston Texans running back Arian Foster found out over a year ago.  Even judges have to learn to keep in mind that all important adage: think before you hit send.

So, what do you think?  Have you seen other examples of social media impacting the legal process?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Another Social Media Request Denied as a “Carte Blanche” Request – eDiscovery Case Law

After last week’s recap of 2012 cases, it’s time to start discussing cases in 2013!

In Keller v. National Farmers Union Property & Casualty Co., No. CV 12-72-M-DLC-JCL, (Dist. Court, D. Montana Jan. 2, 2013), the defendants filed a motion to compel the plaintiff’s to respond to various discovery requests.  While Magistrate Judge Jeremiah Lynch granted their request to compel the plaintiffs to produce medical records, he denied the defendant’s request “to delve carte blanche into the nonpublic sections of Plaintiffs’ social networking accounts”.

In this breach of contract case claiming damages in the form of unpaid medical expenses and $100,000 in uninsured motorist benefits against the defendant who insured the plaintiff under an automobile liability policy after an automobile accident, the defendant filed a motion to compel the plaintiffs to respond to various discovery requests.  As part of the motion to compel, the defendants requested “any and all records, reports or other documentation for each physician or other health care provider with whom Plaintiff Jennifer Keller has treated or consulted for the period beginning January 1, 2000 up to August 26, 2008”.  The defendants also requested “a full printout of all of [each of the plaintiff’s] social media website pages and all photographs posted thereon including, but not limited to, Facebook, Myspace, Twitter, LinkedIn, LiveJournal, Tagged, Meetup, myLife, Instagram and MeetMe from August 26, 2008 to the present”.

Noting that “Plaintiffs have not shown or argued that producing those records would be unduly burdensome, or that National Farmers Union propounded the discovery request for purposes of harassment”, Judge Lynch granted the motion to compel with regard to the medical records.  However, with regard to the request for social media web pages, while noting that the “content of social networking sites is not protected from discovery merely because a party deems the content ‘private’”, Judge Lynch referenced Tompkins v. Detroit Metropolitan Airport and noted a requirement for a “threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence”.  In this case, Judge Lynch ruled that the defendant “has not made the requisite threshold showing”, stating that the defendant “is not entitled to delve carte blanche into the nonpublic sections of Plaintiffs’ social networking accounts”.

Therefore, while granting the defendant’s request that the “Plaintiffs must provide a list of all the social networking sites to which they belong”, the remainder of the defendant’s request for social media information was denied, subject to their “right to renew the motion in the event it can make the threshold showing of relevance discussed above”.

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

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

2012 eDiscovery Year in Review: eDiscovery Case Law, Part 3

As we noted the past two days, eDiscoveryDaily published 98 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to social media and the first cases approving technology assisted review.  Today, let’s take a look back at cases related to admissibility and the duty to preserve and produce electronically stored information (ESI).

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

ADMISSIBILITY AND DUTY TO PRESERVE AND PRODUCE

Admissibility of ESI, and the duty to preserve and produce it, is more at issue than ever.  Whether the issue is whether certain emails should be considered privileged, whether cloning of computer files is acceptable or whether text messages require substantiation of authorship, parties are disputing what ESI should actually be admissible in litigation.  Parties are also disputing when and where litigation holds are required and whether collection and search practices are acceptable.  In short, there are numerous disputes about data being produced and not being produced.  Here are (a whopping) sixteen cases related to admissibility and the duty to preserve and produce ESI:

Emails Between Husband and Wife Are Not Privileged, If Sent from Work Computer.  In United States v. Hamilton, the Fourth Circuit found that the district court had not abused its discretion in finding that e-mails between the defendant and his wife did not merit marital privilege protection because the defendant had used his office computer and his work e-mail account to send and receive the communications and because he had not taken steps to protect the e-mails in question, even after his employer instituted a policy permitting inspection of e-mails and he was on notice of the policy.

Defendant Had Duty to Preserve Despite No Physical Possession of Documents.  In Haskins v. First American Title Insurance Co., a court found that an insurance company had a duty to issue a litigation hold to its independent title agents because litigation was reasonably foreseeable and the duty to preserve extends to third parties, as long as the documents are “within a party’s possession, custody, or control.” Although it did not have physical possession, the insurance company controlled the agents’ documents because it had “‘the legal right or ability to obtain the documents from [the agents] upon demand.’”

Defendant Compelled to Produce Additional Discovery to Plaintiff.  In Freeman v. Dal-Tile Corp., a case alleging harassment and discrimination, among other claims, against her former employer Dal-Tile Corporation, the plaintiff brought a motion to compel, asserting that some of the defendant’s discovery responses related to its search for ESI were deficient.

Defendant Claiming Not Reasonably Accessible Data Has Some ‘Splaining To Do.  In Murray v. Coleman, the plaintiff alleged harassment and retaliation in connection with his employment with the New York State Department of Correctional Services (DOCS). This discovery dispute arose when the plaintiff requested access to certain electronic records, alleging that the defendants withheld them.

Cloning of Computer Files: When There’s a Will, There’s a Way.  In Matter of Tilimbo, a court held it was permissible to order cloning of computer files where doing so did not place an unreasonable burden on a nonparty, appropriate steps were taken to protect any privileged information, and the nonparty had not previously produced the requested information in hard copy.

Citing Rule 26(g), Court Orders Plaintiff’s Counsel to Disclose Search Strategy.  Our 501st post on the blog addresses S2 Automation LLC v. Micron Technology, where New Mexico District Judge James Browning ordered the plaintiff’s attorneys to disclose the search strategy their client used to identify responsive documents, based on Federal Rule 26(g) that requires attorneys to sign discovery responses and certify that they are “complete and correct.”

Judge Scheindlin Says “No” to Self-Collection, “Yes” to Predictive Coding.  When most people think of the horrors of Friday the 13th, they think of Jason Voorhees. When US Immigration and Customs thinks of Friday the 13th horrors, do they think of Judge Shira Scheindlin?  New York District Judge Scheindlin issued a decision on Friday, July 13, addressing the adequacy of searching and self-collection by government entity custodians in response to Freedom of Information Act (FOIA) requests.

Plaintiff Compelled to Produce Mirror Image of Drives Despite Defendant’s Initial Failure to Request Metadata.  In Commercial Law Corp., P.C. v. FDIC, Michigan District Judge Sean F. Cox ruled that a party can be compelled to produce a mirror image of its computer drives using a neutral third-party expert where metadata is relevant and the circumstances dictate it, even though the requesting party initially failed to request that metadata and specify the format of documents in its first discovery request.

Court Allows Third Party Discovery Because Defendant is an “Unreliable Source”.  Repeatedly referring to the defendant’s unreliability and untrustworthiness in discovery and “desire to suppress the truth,” Nebraska Magistrate Judge Cheryl R. Zwart found, in Peter Kiewit Sons’, Inc. v. Wall Street Equity Group, Inc., that the defendant avoided responding substantively to the plaintiff’s discovery requests through a pattern of destruction and misrepresentation and therefore monetary sanctions and an adverse jury instruction at trial were appropriate.

Inadmissibility of Text Messages Being Appealed.  In October 2011, we covered a case – Commonwealth v. Koch – where a Pennsylvania Superior Court ruled text messages inadmissible, declaring that parties seeking to introduce electronic materials, such as cell phone text messages and email, must be prepared to substantiate their claim of authorship with “circumstantial evidence” that corroborates the sender’s identity. That case, where Amy N. Koch was originally convicted at trial on drug charges (partially due to text messages found on her cell phone), is now being appealed to the state Supreme Court.

Another Case with Inadmissible Text Messages.  Above, we discussed a case where a Pennsylvania Superior Court ruled text messages inadmissible, declaring that parties seeking to introduce electronic materials, such as cell phone text messages and email, must be prepared to substantiate their claim of authorship with “circumstantial evidence” that corroborates the sender’s identity. That case is now being appealed to the state Supreme Court. Today, we have another case – Rodriguez v. Nevada – where text messages were ruled inadmissible.

Court Grants Plaintiff’s Motion to Compel Mirror-Imaging of Defendant’s Computers.  In approving a motion for expedited discovery in United Factory Furniture Corp. v. Alterwitz, Magistrate Judge Cam Ferenbach granted the plaintiff’s motion for a mirror-imaging order after determining the benefit outweighed the burden of the discovery, and it denied as unnecessary the plaintiff’s motion for an order to preserve evidence and a preliminary injunction from spoliation of evidence.

Court Orders eDiscovery Evidentiary Hearing When Parties Are Unable to Cooperate.  A month ago, in Chura v. Delmar Gardens of Lenexa, Inc., Magistrate Judge David J. Waxse ordered an evidentiary hearing to discuss the sufficiency of the defendant’s search for ESI and format of production in response to the plaintiff’s motion to compel additional searching and production.

At The Eleventh Hour, Encrypted Hard Drive Is Decrypted.  In our previous post regarding the case U.S. v. Fricosu, Colorado district judge Robert Blackburn ruled that Ramona Fricosu must produce an unencrypted version of her Toshiba laptop’s hard drive to prosecutors in a mortgage fraud case for police inspection. Naturally, the defendant appealed. On February 21st, the 10th U.S. Circuit Court of Appeals refused to get involved, saying Ramona Fricosu’s case must first be resolved in District Court before her attorney can appeal. She would have been required to turn over the unencrypted contents of the drive as of March 1. However, at the last minute, Colorado federal authorities decrypted the laptop.

Court Rules Exact Search Terms Are Limited.  In Custom Hardware Eng’g & Consulting v. Dowell, the plaintiff and defendant could not agree on search terms to be used for discovery on defendant’s forensically imaged computers. After reviewing proposed search terms from both sides, and the defendant’s objections to the plaintiff’s proposed list, the court ruled that the defendant’s proposed list was “problematic and inappropriate” and that their objections to the plaintiff’s proposed terms were “without merit” and ruled for use of the plaintiff’s search terms in discovery.

KPMG Loses Another Round to Pippins.  As discussed previously in eDiscovery Daily, KPMG sought a protective order in Pippins v. KPMG LLP to require the preservation of only a random sample of 100 hard drives from among those it had already preserved for this and other litigation or shift the cost of any preservation beyond that requested scope. Lawyers for Pippins won a ruling last November by Magistrate Judge James Cott to use all available drives and Judge Cott encouraged the parties to continue to meet and confer to reach agreement on sampling. However, the parties were unable to agree and KPMG appealed to the District Court. In February, District Court Judge Colleen McMahon upheld the lower court ruling.

Tune in tomorrow for more key cases of 2012 and, once again, the most common theme of the year!

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

2012 eDiscovery Year in Review: eDiscovery Case Law, Part 2

As we noted yesterday, eDiscoveryDaily published 98 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to proportionality and cooperation, privilege and inadvertent disclosures, and eDiscovery cost reimbursement.  Today, let’s take a look back at cases related to social media and, of course, technology assisted review(!).

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

SOCIAL MEDIA

Requests for social media data in litigation continue.  Unlike last year, however, not all requests for social media data were granted as some requests were deemed overbroad.  However, Twitter fought “tooth and nail” (unsuccessfully, as it turns out) to avoid turning over a user’s tweets in at least one case.  Here are six cases related to social media data:

Class Action Plaintiffs Required to Provide Social Media Passwords and Cell Phones.  Considering proportionality and accessibility concerns in EEOC v. Original Honeybaked Ham Co. of Georgia, Colorado Magistrate Judge Michael Hegarty held that where a party had showed certain of its adversaries’ social media content and text messages were relevant, the adversaries must produce usernames and passwords for their social media accounts, usernames and passwords for e-mail accounts and blogs, and cell phones used to send or receive text messages to be examined by a forensic expert as a special master in camera.

Another Social Media Discovery Request Ruled Overbroad.  As was the case in Mailhoit v. Home Depot previously, Magistrate Judge Mark R. Abel ruled in Howell v. The Buckeye Ranch that the defendant’s request (to compel the plaintiff to provide her user names and passwords for each of the social media sites she uses) was overbroad.

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

Home Depot’s “Extremely Broad” Request for Social Media Posts Denied.  In Mailhoit v. Home Depot, Magistrate Judge Suzanne Segal ruled that the three out of four of the defendant’s discovery requests failed Federal Rule 34(b)(1)(A)’s “reasonable particularity” requirement, were, therefore, not reasonably calculated to lead to the discovery of admissible evidence and were denied.

Social Media Is No Different than eMail for Discovery Purposes.  In Robinson v. Jones Lang LaSalle Americas, Inc., Oregon Magistrate Judge Paul Papak found that social media is just another form of electronically stored information (ESI), stating “I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms. I therefore fashion a single order covering all these communications.”

Plaintiff Not Compelled To Turn Over Facebook Login Information.  In Davids v. Novartis Pharm. Corp., the Eastern District of New York ruled against the defendant on whether the plaintiff in her claim against a pharmaceutical company could be compelled to turn over her Facebook account’s login username and password.

TECHNOLOGY ASSISTED REVIEW

eDiscovery vendors everywhere had been “waiting with bated breath” for the first case law pertaining to acceptance of technology assisted review within the courtroom.  Not only did they get their case, they got a few others – and, in one case, the judge actually required both parties to use predictive coding.  And, of course, there was a titanic battle over the use of predictive coding in the DaSilva Moore – easily the most discussed case of the year.  Here are five cases where technology assisted review was at issue:

Louisiana Order Dictates That the Parties Cooperate on Technology Assisted Review.  In the case In re Actos (Pioglitazone) Products Liability Litigation, a case management order applicable to pretrial proceedings in a multidistrict litigation consolidating eleven civil actions, the court issued comprehensive instructions for the use of technology-assisted review (“TAR”).

Judge Carter Refuses to Recuse Judge Peck in Da Silva Moore.  This is only the final post of the year in eDiscovery Daily related to Da Silva Moore v. Publicis Groupe & MSL Group.  There were at least nine others (linked within this final post) detailing New York Magistrate Judge Andrew J. Peck’s original opinion accepting computer assisted review, the plaintiff’s objections to the opinion, their subsequent attempts to have Judge Peck recused from the case (alleging bias) and, eventually, District Court Judge Andrew L. Carter’s orders upholding Judge Peck’s original opinion and refusing to recuse him in the case.

Both Sides Instructed to Use Predictive Coding or Show Cause Why Not.  Vice Chancellor J. Travis Laster in Delaware Chancery Court – in EORHB, Inc., et al v. HOA Holdings, LLC, – has issued a “surprise” bench order requiring both sides to use predictive coding and to use the same vendor.

No Kleen Sweep for Technology Assisted Review.  For much of the year, proponents of predictive coding and other technology assisted review (TAR) concepts have been pointing to three significant cases where the technology based approaches have either been approved or are seriously being considered. Da Silva Moore v. Publicis Groupe and Global Aerospace v. Landow Aviation are two of the cases, the third one is Kleen Products v. Packaging Corp. of America. However, in the Kleen case, the parties have now reached an agreement to drop the TAR-based approach, at least for the first request for production.

Is the Third Time the Charm for Technology Assisted Review?  In Da Silva Moore v. Publicis Groupe & MSL Group, Magistrate Judge Andrew J. Peck issued an opinion making it the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case. Or, so we thought. Conversely, in Kleen Products LLC v. Packaging Corporation of America, et al., the plaintiffs have asked Magistrate Judge Nan Nolan to require the producing parties to employ a technology assisted review approach in their production of documents. Now, there’s a third case where the use of technology assisted review is actually being approved in an order by the judge.

Tune in tomorrow for more key cases of 2012 and one of the most common themes of the year!

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Class Action Plaintiffs Required to Provide Social Media Passwords and Cell Phones – eDiscovery Case Law

We’ve seen several cases where social media data was requested – with some requests granted (including this one, this one and this one) and other requests denied (including this one, this one and this one).  Here is a recent case where the request was granted.

Considering proportionality and accessibility concerns in EEOC v. Original Honeybaked Ham Co. of Georgia, 11-cv-02560-MSK-MEH, 2012 U.S. Dist. (D. Colo. Nov. 7, 2012), Colorado Magistrate Judge Michael Hegarty held that where a party had showed certain of its adversaries’ social media content and text messages were relevant, the adversaries must produce usernames and passwords for their social media accounts, usernames and passwords for e-mail accounts and blogs, and cell phones used to send or receive text messages to be examined by a forensic expert as a special master in camera.

Case Background

This case began when the EEOC sued employer The Original Honeybaked Ham Company of Georgia (“HBH”) on behalf of a class alleging sexual harassment and retaliation. During discovery, HBH requested “numerous categories of documents designed to examine the class members’ damages—emotional and financial—as well as documents going to the credibility and bias of the class members,” and the company moved the court to compel their production.

Among the documents HBH requested were “full unredacted” social media content and text messages. HBH requested such electronically stored information (ESI) because “[m]any of the class members ha[d] utilized electronic media to communicate—with one another or with their respective insider groups—information about their employment with/separation from Defendant HBH, this lawsuit, their then-contemporaneous emotional state, and other topics and content that [HBH] contend[ed] may be admissible in this action.” For example, HBH had “obtained one affected former employee’s Facebook pages” and found that they “contain[ed] a significant variety of relevant information, and further, that other employees posted relevant comments on this Facebook account.”

Court Analysis of Document Request

Judge Hegarty noted that the variety of topics that class members discussed via electronic communications could be viewed “logically as though each class member had a file folder titled ‘Everything About Me,’ which they have voluntarily shared with others.” Therefore, because the documents—if they were in hard copy—would be discoverable if relevant, their existence in electronic form made them likewise discoverable: “The fact that [documents] exist[ ] in cyberspace on an electronic device is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation.” Moreover, the fact that the “Everything About Me” folder was stored in this instance on Facebook made the documents perhaps more susceptible to discovery: “There is a strong argument that storing such information on Facebook and making it accessible to others presents an even stronger case for production, at least as it concerns any privacy objection. It was the claimants (or at least some of them) who, by their own volition, created relevant communications and shared them with others.”

As for their relevance, Judge Hegarty ticked through the categories of documents on the Facebook page that HBH had already obtained and noted that each were potentially relevant. Accordingly, and because “other employees posted relevant comments on this Facebook account,” Judge Hegarty required the production of each class member’s social media content.

Also driving Judge Hegarty’s decision was a concern for proportionality: “The cumulative exposure to the Defendant is most definitely well into the low-to-mid seven-figure range. This is important to note when addressing whether the potential cost of producing the discovery is commensurate with the dollar amount at issue.”

Judge’s Ruling

Ultimately, Judge Hegarty held that each class member should produce the following ESI and related devices: cell phones used to send or receive text messages during the relevant period, information necessary to access social media websites used during the relevant period, and information necessary to access “any e-mail account or web blog or similar/related electronically accessed internet or remote location used for communicating with others or posting communications or pictures” during the relevant period.

Protocol for Production Using a Special Master

Though the relevant information was discoverable, Judge Hegarty established a specific protocol for its production. First, the court would appoint a forensic expert to serve as a Special Master to review the produced ESI in camera. “[T]he parties [would] collaborate to create (1) a questionnaire to be given to the Claimants with the intent of identifying all such potential sources of discoverable information; and (2) instructions to be given to the Special Master defining the parameters of the information he will collect.” Judge Hegarty gave the parties specific procedures to follow in the instance of a disagreement during this process. The Special Master could then begin review.

Following in camera review by the special master, Judge Hegarty stipulated that it would also “review the information in camera and require the production to Defendant of only that information which the Court determines is legally relevant under the applicable rules.” The court would then provide the material to the EEOC, which would have an opportunity to conduct a privilege review. The EEOC would then produce nonprivileged information to HBH along with a privilege log. The court would return irrelevant materials to the EEOC and provide a method for the EEOC to contest any relevancy determinations.

Regarding costs of the review, Judge Hegarty ordered the cost of forensic evaluation to be split equally between the parties. Judge Hegarty noted, “The information ordered to be produced is discoverable—information which, if it exists, was created by the Claimants.” However, the court reserved the option to revisit the allocation of costs and to relieve the Plaintiff/Claimants of monetary responsibility if the effort produced little or no relevant information.

So, what do you think?  Was the judge correct in requiring production of user names, passwords and cell phones for each class member?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Another Social Media Discovery Request Ruled Overbroad – eDiscovery Case Law

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

Background on Defendant’s Request

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

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

Judge Abel’s Ruling

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

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

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

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

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

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

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

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

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

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

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

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

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