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Not Preserving Texts Results in Adverse Inference Sanctions for Plaintiff: eDiscovery Case Law

In NuVasive, Inc. v. Madsen Med., Inc., No. 13cv2077 BTM(RBB) (S.D. Cal. July 22, 2015), California Chief District Judge Barry Ted Moskowitz granted the defendants’ motion for adverse inference sanctions for failure to preserve text messages from four custodial employees that were key to the case.

Case Background

In this contractual dispute, the defendants sought sanctions in the form of an adverse inference jury instruction for the plaintiff’s failure to preserve evidence, specifically, text messages from four employees.  The defendants contended that these text messages could have been evidence of secret coordination between the plaintiff and former employees of the defendants to effect the termination of the defendants’ contractual relationship with the plaintiff and then have the plaintiff hire the defendants’ sales personnel as its own employees.

With regard to the four employees, each had a different level of failure to preserve the text messages.  One former employee turned over his current phone for imaging instead of the phone used during the relevant time period, which he wiped clean before turning it over to his son. A second employee was not asked to turn in his phone until 2014 (after being notified of a litigation hold in August 2012 and again in September 2013) and when he did, all text messages prior to September 20, 2012 were missing (which the plaintiff attributed to an iPhone iOS 6 software update released on September 19, 2012). The third employee had his phone wiped when he turned it in for an upgrade on two separate occasions, pursuant to company policy.  The fourth employee did not provide the phone he used in 2012 until sometime in 2013 and testified that he may have deleted some relevant messages.

Judge’s Ruling

Judge Moskowitz stated that “In light of all of the text messages that were lost or deleted, the Court concludes that NuVasive was at fault for not enforcing compliance with the litigation hold. Although it is true that Defendants should have taken steps to preserve the text messages of Orlando and Kordonowy while they were still working for MMI, NuVasive still had a duty to preserve the evidence and failed to do so.”

Rejecting the plaintiff’s claims that the defendants had obtained most of the deleted/lost text messages through other individuals, Judge Moskowitz also found that “Defendants have made a sufficient showing of prejudice”, noting from other texts that the defendants provided that it could “reasonably be inferred from these texts, viewed together with other evidence, that the MMI sales representatives were talking to NuVasive about plans to terminate MMI and have the sales representatives work directly for NuVasive. Accordingly, texts during the relevant time period to or from Moore, Kordonowy, Graubart, and Orlando might have furthered MMI’s claims.”

As a result, Judge Moskowitz found that “a properly tailored adverse inference instruction is appropriate and will not cause ‘substantial unfairness’ to NuVasive” and decided to give the following instruction:

“NuVasive has failed to prevent the destruction of evidence for MMI’s and Ms. Madsen’s use in this litigation after its duty to preserve the evidence arose. After considering all of the pertinent facts and circumstances, you may, but are not obligated to, infer that the evidence destroyed was favorable to MMI and unfavorable to NuVasive.”

Judge Moskowitz denied the defendants’ request for attorney’s fees and costs “because Defendants were also partially at fault for not taking steps to preserve text messages of Kordonowy and Orlando while they were still working for MMI.”

So, what do you think?  Was the sanction appropriate for this case?  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. 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.

Think Before You Hit Send (Unless You’re On Gmail and are Really Fast): eDiscovery Trends

Let’s face it, people make mistakes. However, a new feature from Google may help people who make those mistakes avoid the consequences – if they’re quick to address them.

As covered on Fortune.com (Gmail now officially lets you ‘Undo Send’ those really embarrassing e-mails, by Kia Kokalitcheva), Gmail, Google’s e-mail service, has officially added its “Undo Send” feature to the Web-based version of the service. Previously an experimental feature as part of Gmail’s “labs,” the feature lets users retract an e-mail after it’s been sent. Users can choose a time window between five and 30 seconds during which they’ll be able to recall that offending e-mail. So, if you’re modus operandi sometimes tends to be “ready, fire, aim”, you can avoid that critical mistake, if you notice it and act quickly.

Although Google actually first introduced the feature in 2009, it will now be located in Gmail’s general settings tabs instead of hidden in the “labs” section. However, users will have to manually enable it as the feature is not turned on by default. Google’s recently released email app, Inbox, also provides the “Undo Send” feature for those who need the safety net when on the go (which may be even more often than from the desktop).

Here’s a page with instructions on how to enable the “Undo Send” feature.

Imagine if this feature catches on with other applications, such as Microsoft Outlook? Or social media sites such as Facebook or Twitter? If this feature existed in these applications in the past, it might have helped many who may have wished that they could think after they send, including an all-pro NFL running back, a Chili’s waitress, the daughter of a former prep school head (who lost out on an $80,000 settlement), the social media manager of an NBA team and a former New York congressman (and former NYC mayoral candidate).

Regardless of which applications eventually have this feature, unless you’re very quick to catch your mistake, it’s still better to think before you hit send. Take a deep breath, look over the content, check to make sure you’ve selected the correct recipient(s), then hit send. Otherwise, you just might be the next social media disaster story covered on eDiscovery Daily!

So, what do you think? Do you think the “Undo Send” feature will catch on with other applications? 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. 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.

You Almost Can’t Have a Divorce without Smartphone Evidence These Days: eDiscovery Trends

If you think the NSA is tough, hell hath no fury like a suspicious spouse scorned.

According to the American Academy of Matrimonial Lawyers (AAML) – not to be confused with the National Organization of Matrimonial Attorneys Nationwide (or N.O.M.A.N.) from the Coen Brothers movie Intolerable Cruelty (whose motto was “let N.O.M.A.N. put asunder”, get it?) – almost every divorce attorney works with smartphone evidence these days.

According to the AAML survey (press release here), a whopping 97% of members have seen an increase in divorce evidence being taken from smartphones and other wireless devices during the past three years. In addition, an almost universal number of 99% of respondents have cited a rising number of text messages being used in cases, while 67% have noted more evidence being gathered from apps. Not surprisingly, the top three apps for divorce evidence are also the most popular social media sites, with 41% citing Facebook, 17% choosing Twitter, and 16% identifying Instagram as sites where evidence was obtained.

“In the past, a suspicious spouse might have turned to a private investigator for this kind of detailed information, but nowadays most people willingly carry around some kind of wireless tracking device everywhere they go,” said James McLaren, president of the American Academy of Matrimonial Lawyers. “As with almost every aspect of our lives, smart phones and other wireless devices are having a big impact on the ways in which couples divorce.”

Overall, 97% of the attorneys cited an increase in the number of cases using evidence taken from smartphones and other wireless devices during the past three years, while 2% said no change and only 1% noted a decrease. The most common types of evidence gathered were cited by 46% as “texts,” while 30% said “emails,” 12% “phone numbers/call history,” 7% “Internet browsing/searches,” and “GPS” was noted by 4% of the respondents. In total, 99% cited an increase of cases using text messages during the past three years, while 1% noticed no change.

An increase in the number of cases using evidence taken from apps during the past three years was cited by 67% while 28% chose no change, and 5% noted a decrease. In addition to the top three apps listed for divorce evidence, the next selections included Find My iPhone and Snapchat at 6% each, 4% choosing Google Maps, Google+ at 3% and WhatsApp and Tinder each picked by 1% of the respondents.

So, if your divorce attorney is going to nail your spouse’s ass(ets), it will probably be with help from the ESI on his or her smartphone and social media accounts.

Once again, thanks for the tip from Sharon Nelson and her excellent Ride the Lightning blog!

So, what do you think? Do your cases include more ESI from smartphones? 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. 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.

Want a Definition of “Possession, Custody, or Control” of ESI? Look to The Sedona Conference: eDiscovery Best Practices

Hard to believe that we’re just now getting around to covering it, but The Sedona Conference® released a new commentary back in April. This guide strives to provide guidance to defining the phrase “possession, custody, or control” as it’s used in Federal Rules 34 and 45.

Rule 26(a) of the Federal Rules of Civil Procedure allows for the discovery of “documents, electronically stored information, and tangible things” in the responding party’s “possession, custody, or control.” Similarly, Rule 34(a) and Rule 45(a) obligate a party responding to a document request or subpoena to produce “documents, electronically stored information, and tangible things” in that party’s possession, custody, or control. However, nowhere does the Rules provide any definition of the phrase “possession, custody, or control”, requiring parties to look to case law for a definition. Unfortunately, the case law has proved to be unclear and inconsistent in providing such a definition. In addition, determining whether ESI should be considered to be in a responding party’s “possession, custody, or control” has become more complex, with the growing popularity of technologies and trends such as social media and cloud computing.

The public comment version of The Sedona Conference Commentary on Rule 34 and Rule 45 Possession, Custody, or Control was released in April to provide practical, uniform and defensible guidelines regarding when a responding party should be deemed to have “possession, custody, or control” of documents and all forms of electronically stored information (ESI) subject to Rule 34 and Rule 45 requests for production. A secondary purpose of the Commentary is to advocate abolishing use of the common-law “practical ability test” for purposes of determining Rule 34 and Rule 45 “control” of ESI, which has led to “inequitable” situations in which courts have held that a party has Rule 34 “control” of Documents and ESI even though the party did not have the actual ability to obtain the Documents and ESI.

The guide begins with a one-page Abstract that briefly describes the issue and the goal of the commentary, followed by a one-page list of the actual principles. They are:

  • Principle 1: A responding party will be deemed to be in Rule 34 or Rule 45 “possession, custody, or control” of Documents and ESI when that party has actual possession or the legal right to obtain and produce the Documents and ESI on demand.
  • Principle 2: The party opposing the preservation or production of specifically requested Documents and ESI claimed to be outside its control, generally bears the burden of proving that it does not have actual possession or the legal right to obtain the requested Documents and ESI.
  • Principle 3(a): When a challenge is raised about whether a responding party has Rule 34 or Rule 45 “possession, custody, or control” over Documents and ESI, the Court should apply modified “business judgment rule” factors that, if met, would allow certain, rebuttable presumptions in favor of the responding party.
  • Principle 3(b): In order to overcome the presumptions of the modified business judgment rule, the requesting party bears the burden to show that the responding party’s decisions concerning the location, format, media, hosting and access to Documents and ESI lacked a good faith basis and were not reasonably related to the responding party’s legitimate business interests.
  • Principle 4: Rule 34 and Rule 45 notions of “possession, custody, or control” should never be construed to trump conflicting state or federal privacy or other statutory obligations.
  • Principle 5: If a party responding to a specifically tailored request for Documents or ESI (either prior to or during litigation), does not have actual possession or the legal right to obtain the Documents or ESI that are specifically requested by their adversary because they are in the “possession, custody, or control” of a third party, it should, in a reasonably timely manner, so notify the requesting party to enable the requesting party to obtain the Documents or ESI from the third party. If the responding party so notifies the requesting party, absent extraordinary circumstances, the responding party should not be sanctioned or otherwise held liable for the third party’s failure to preserve the Documents or ESI.

The remainder of the guide covers 1) the background that led to the new principles, including inconsistent interpretations of “possession, custody, or control” within the Rules, shortcomings of the “practical ability test” and effect of new technologies on the analysis and 2) a detailed look at each of the new principles. There is also an Appendix with a lengthy spreadsheet of cases where “possession, custody, or control” was at issue.

As usual, the Commentary is free and can be downloaded here. As this is the public comment version, you can submit comments to info@sedonaconference.org, or fax(!) them to 602-258-2499.

So, what do you think? Will these new principles lead to a consistent application of “possession, custody, or control” within the courts? 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. 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 Rejects Defendants Motion Seeking Limitless Access to Plaintiff’s Facebook Account: eDiscovery Case Law

We haven’t had a good social media request case in a while – here’s one that compares to other cases we’ve covered in the past…

In the class action In re Milo’s Kitchen Dog Treats Consolidated Cases, Civil Action No. 12-1011 (W.D. Penn. April 14, 2015), Pennsylvania Magistrate Judge Maureen P. Kelly denied the defendants’ Motion to Compel Unredacted Facebook Data File and Production of Username and Password, disagreeing that the discovery of one highly relevant Facebook entry justified the defendants to be “somehow entitled to limitless access to her Facebook account”. Judge Kelly did order the plaintiff to produce previously produced redacted Facebook pages to the Court unredacted so that an in camera inspection could be conducted to confirm that the redacted information was truly privileged.

Case Background

In this case, based on the discovery of the posting on the plaintiff’s Facebook page in which she indicated that another brand of chicken jerky dog treats caused the harm to her dog, the defendants were of the belief that there could be other relevant information on her Facebook account. The defendants sought that information in their Second Request for production, asking the plaintiff to produce “the Facebook Data and Facebook Data File of Lisa Mazur and/or Lisa Pierwsza Mazur.” Despite the fact that the defendants’ request was unlimited and objected to by the plaintiff as inherently overbroad, she nevertheless responded to the request and provided 648 pages of Facebook data, albeit redacted. The Facebook data provided contained information indicating that Plaintiff purchased dog treats other than Defendant’s brand, as well as conversations the plaintiff had with others about the dog treat brand and the case.

The defendants argued that it was improper for the plaintiff to unilaterally decide what should be redacted complaining that the location of certain redactions were “suspect” and contended that they were entitled to unfettered access to Plaintiff’s Facebook account including her username and password. Citing Largent v. Reed, 2011 WL 5632688, (Pa. C.P. Franklin Co. Nov. 8, 2011), Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011) and McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010), suggesting that “these cases stand for the proposition that Facebook accounts are always subject to unrestricted access once a threshold showing of relevance has been made”.

Judge’s Ruling

Referencing Fed.R.Civ.P. 26(b)(1), Judge Kelly stated that “Rulings regarding the proper scope of discovery, and the extent to which discovery may be compelled, are matters consigned to the Court’s discretion and judgment. A party moving to compel discovery bears the initial burden of proving the relevance of the requested information.”

With regard to the three cases cited by the defendants, Judge Kelly noted that they were “factually distinguishable from the instant case and, in this Court’s view, do not require the limitless access to Plaintiff’s Facebook account data advocated by Defendants.” In Largent v. Reed, for example, the plaintiff had refused to provide any Facebook data, whereas the plaintiff here produced 648 pages from her Facebook account. Judge Kelly also observed that pictures of the plaintiff “enjoying life with her family” in Facebook would not near as relevant as they would be in a personal injury litigation like Largent.

Agreeing with the plaintiff’s argument, Judge Kelly stated that “having already provided Defendants with Facebook data relevant to the case, Defendants have failed to make any showing that further production of her Facebook records would result in the dissemination of any more relevant information than has already been provided.” She therefore denied the defendants motion to compel.

With regard to the redactions, the plaintiff had redacted a conversation with another purported class member in the case because their conversation revolved around “specific advice given by class counsel as to the litigation and its progress”. Because of the dispute over the validity of the redactions, Judge Kelly decided “out of an abundance of caution”, “that the best course is to have Plaintiff produce the claimed privileged documents to the Court so that an in camera inspection can be conducted. In this manner, any truly privileged information will remain protected and Defendants can proceed confident that they have received all the relevant and non-privileged information from Plaintiff’s Facebook data.”

So, what do you think? Was that the correct decision or should the judge have treated this case like the three cases cited by the defendant? 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. 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.

Even When You Win in the Playoffs, You Should Still Think Before You Hit Send: eDiscovery Trends

Since social media has become a big part of discovery, we like to good social media disaster story every once in a while. Last year, we covered the story of the former head of a private preparatory school in Miami, who lost out an $80,000 discrimination settlement after his daughter boasted about it on Facebook. And, of course, no discussion of social media disasters would be complete without mentioning Anthony Weiner. The latest example is the (now former) social media manager of my hometown Houston Rockets basketball team, who lost his job over an offensive tweet.

As covered in Click2Houston.com (Houston Rockets fire social media manager after offensive tweet, written by Syan Rhodes), the Rockets fired its social media manager Chad Shanks after his tweet in the waning moments of the Rockets’ series-clinching 104-93 Game 5 win over the Dallas Mavericks. With the game essentially in hand, Shanks posted a tweet using emoji characters of a horse with a gun to its head and the words, “Shhhhh. Just close your eyes. It will all be over soon”.

The Mavericks’ official Twitter account reacted, tweeting, “Not very classy but we still wish you guys the very best of luck in the next round.” Not long after, the Rockets’ tweet was removed and the team was apologizing, “Our Tweet earlier was in very poor taste & not indicative of the respect we have for the @dallasmavs & their fans. We sincerely apologize.”

The next day, Shanks was fired.

“I’ve kind of made my name, so to speak, even though a lot of people didn’t know who I am, being a little more edgy, pushing the envelope a little bit and trying to be funny”, Shanks was quoted in an interview with KPRC. “It was heat of the moment. My emotions got the best of me and I didn’t see how that tweet would offend so many people. And that was my mistake; I should have thought that through a little better.”

Shanks also tried to address the controversial tweet head-on, stating “People were upset, feeling I advocated violence toward animals. That wasn’t what I meant at all. It was just a jab at taking out the Mavericks and I really didn’t mean to offend anyone,” he said. “I’m sorry it ended this way, but I’m grateful for the opportunities they gave me. I loved every second of the job.”

Shanks is getting a lot of support online with the hashtag #BringBackChad and there’s even a change.org petition to try to get him reinstated.

And, there is at least a bit of a happy ending. Dan Le Batard, of ESPN, hired Shanks during his ESPNRadio show to run his show’s Twitter account (through Saturday night, covering the NFL Draft, among other big sports events). Hey, even Anthony Weiner made a comeback – sort of.

So, what do you think? Do you have any social media disasters in your organization? 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiff’s Motion to Quash Subpoena of Text Messages Granted by Court: eDiscovery Case Law

In Burdette v. Panola County, No. 3:13CV286-MPM-SAA (N.D. Miss. February 4, 2015), Mississippi Magistrate Judge S. Allan Alexander granted the plaintiff’s Motion to Quash Subpoena where the defendant subpoenaed the plaintiff’s text messages and call log records from his mobile provider.

Case Background

In this employment case, the defendant issued a subpoena to AT&T Subpoena Compliance Center for production of “[a]ny and all calls and text messages made from and received from [the plaintiff’s phone number] in the custody and control of AT&T for the dates of April 23, 2012, beginning 1:00 p.m. through May 27, 2012.” The defendants stated that the subpoena was necessary because plaintiff had avoided producing ESI that is relevant to the claims at issue and failed to maintain either the phone upon which he recorded a conversation the day of his discharge or the computer to which he later transferred the phone recording.

The plaintiff contended that the subpoena was overly broad, harassing, irrelevant, and potentially sought information protected by the attorney client privilege, as the requested text messages would undoubtedly include texts to and from his family members and possibly to and from his attorney. The plaintiff also noted that the period of time for which the text messages and calls were sought extended twenty days after the plaintiff was terminated.

Judge’s Opinion

Judge Alexander noted that the defendants “have offered no explanation for why these text messages and phone calls are relevant and has not agreed to limit the production of them in any way”. Despite the fact that the plaintiff failed to maintain the phone and computer, Judge Alexander determined that “neither of those two facts support the request for all of plaintiff’s text messages and phone calls before and for three weeks after his termination. If defendants desire to seek a spoliation instruction, they are permitted to do so, but defendants have failed to convince the undersigned that production of text messages and phone call logs will resolve any issue relating to the recorded conversation. The court will not permit irrelevant discovery that appears to be more harassing than productive.”

“Weighing the factors set out by the Fifth Circuit for quashing a subpoena, the relevance factor clearly weighs against production of the phone records”, stated Judge Alexander, finding that “the breadth of the request is entirely too wide even if a valid reason for the request had been established.” As a result, he granted the plaintiff’s request to quash the defendant’s subpoena.

So, what do you think? Was the defendants’ request overbroad? Or did they have a valid reason for the subpoena, given that the plaintiff failed to produce relevant ESI? 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. eDiscoveryDaily 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. 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.

Need Help on Handling Social Media, Cloud and Mobile Data Sources? Check Out this Conference: eDiscovery Trends

Last week, we announced that eDiscoveryDaily is a new Education partner of EDRM. University of Florida Levin College of Law is another EDRM Education partner and will be teaming up with EDRM to host the 3rd Annual UFLaw and EDRM Electronic Discovery Conference on Friday, March 27.

The conference is focusing its attention this year on litigation involving social media, the cloud, and mobile devices. Data from a multitude of social platforms and mobile devices (such as your automobile, Fitbit, iPhone, smart TV and even your thermostat) capture our movements, our moods, and the everyday moments of our lives. That data is stored everywhere – on our devices, at remote locations, and in the cloud. This critical information can make or break any litigation and investigation.

The event will take place in Holland Hall at the University of Florida, Levin College of Law, and will be streamed online as well. It runs from 8:00 am to 6:00 pm Eastern time. George Socha, co-founder of EDRM and William Hamilton, Partner, Quarles & Brady are co-chairs and there are a number of knowledgeable presenters, including Craig Ball and Monica Bay. 6.5 general CLE credits are available for attendees. Here’s a link to the agenda.

The entire day-long conference is available online for $99, or in person for $199. EDRM members receive a discounted rate of $45 for online or $99 for in person attendance (select “Certified Conference Friends” at time of registration). The Conference is completely free to all employees of federal and state governmental agencies, judges and judicial staff, students, and academics. Click here to register.

So, what do you think? Do you feel that you have a handle on social media, the cloud, and mobile devices? If not, are you attending the conference? 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. eDiscoveryDaily 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. 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.

When Claiming Workplace Injury, Facebook Posts Aren’t Handy, Man: eDiscovery Case Law

In Newill v. Campbell Transp. Co., 2:12-cv-1344 (W.D. Pa. Jan. 14, 2015), Pennsylvania Senior District Judge Terrence F. McVerry ruled on the plaintiff’s motion in limine on miscellaneous matters by allowing the defendant to introduce Facebook posts into evidence that related to the plaintiff’s physical capabilities, but not those that related to his employability.

Case Summary

In this workplace injury case related to the plaintiff’s employment with a shipping company, the plaintiff sought, via his motion, to preclude the defendant from introducing several of his Facebook posts into evidence, on the basis that they are irrelevant or would be unfairly prejudicial. The defendant responded that the posts were relevant to show that following the accident the plaintiff retained the ability to engage in physical activities despite his claim of injury.

The defendant sought to introduce Facebook posts where the plaintiff discussed “physically taxing activities” such as painting, landscaping, flooring, going to the gym, undercoating a truck, and “going physical”. The plaintiff also apparently advertised his services as a handyman and suggested that “no job [was] 2 big or 2 small.” The Defendant also argued that the posts were relevant to the question of the plaintiff’s employability, which the defendant’s expert testified would have been improved if he adopted a “sensible social medial presence” and eliminated posts containing “casual or rough language” on Facebook.

Judge’s Decision

Judge McVerry found that “posts from Plaintiff’s Facebook account ‘that reflect physical capabilities inconsistent with a plaintiff’s claimed injury are relevant.’”  He also stated, however:

“While the Court understands that Plaintiff may be embarrassed by the content of some of his posts, that alone is not a sufficient basis for excluding the posts under Rule 403. If, at trial, Defendant attempts to introduce a particular Facebook post that Plaintiff feels is unduly embarrassing, the issue of the admissibility can be re-raised at that time and the Court reserves the discretion to exclude it pursuant to Fed. R. Evid. 611 (granting the court discretion to bar harassment and undue embarrassment of a witness).

As to Defendant’s second argument, the Court is not convinced that Costantini should be permitted testify about Plaintiff’s inane postings on Facebook when discussing the issue of his employability. To be sure, potential employers do often consider an applicant’s Facebook account when making a hiring decision. But Costantini’s testimony that Plaintiff’s Facebook account “probably is not giving the employers a good impression” is nothing more than speculation. There is nothing in the record actually linking his Facebook posts to his inability to obtain new employment until recently or suggesting that the types of jobs for which Plaintiff was qualified would be harder to obtain because of his Facebook posts. Without such a link having been established, Costantini has no basis to offer an opinion on these matters.”

As a result, Judge McVerry denied the portion of the plaintiff’s motion “insofar as it seeks to prevent Defendant from introducing Facebook posts that tend to contradict his claimed damages”, but granted the portion with regard to the defendant’s expert being permitted to rely on Plaintiff’s Facebook posts in assessing his employability.

So, what do you think? Should the defendant be prohibited from introducing posts that demonstrate the plaintiff’s employability? 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. eDiscoveryDaily 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. 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.