Case Law

2019 eDiscovery Case Law Year in Review, Part 3

As we noted Tuesday and yesterday, eDiscovery Daily published 66 posts related to eDiscovery case decisions and activities over the past year, covering 56 unique cases!  Yesterday, we looked back at cases related to cooperation, form of production, privilege and confidentiality disputes, social media related disputes and a key case regarding biometric security.  Today, let’s take a look back at cases related to disputes regarding proportionality vs. relevancy vs. privacy.

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!

It’s also worth noting that Tom O’Connor and I will once again be discussing some of these cases – and what the legal profession can learn from those rulings – on our webcast on Wednesday, January 29thImportant eDiscovery Case Law Decisions of 2019 and Their Impact on 2020 at noon CT (1pm ET, 10am PT).  The webcast is CLE accredited in selected states, so come check it out!

PROPORTIONALITY vs. RELEVANCY vs. PRIVACY

Since the 2015 Federal Rules changes and changes to Rule 26(b)(1) regarding the scope of discovery, we’re seeing more disputes regarding proportionality vs. relevancy vs. privacy than ever.  Once again this year, there are a lot of disputes related to proportionality vs. relevancy, relevancy vs. privacy and proportionality vs. privacy and they cover all sorts of disputes.  Here are fourteen cases related to proportionality vs. relevancy vs. privacy this past year:

Court Sides with Defendants in Subpoena of Police Department Records of Unsolved Murder: In Farmers New World Life Ins. Co. v. Atchison, Oklahoma District Judge Timothy D. DiGiusti granted the “Children” defendants’ Motion to Compel against non-party City of Oklahoma City Police Department (“OCPD”) to comply with the Children’s subpoena of records related to the murder of their father in a civil case with the insurance company.

Court Orders Defendants to Comply with Rule 26(a), Ditch the Boilerplate Objections: In RightCHOICE Managed Care, Inc. v. Hospital Partners, Inc., Missouri District Judge Greg Kays ordered the discovery defendants to “supplement their initial disclosures so that they comply with Rule 26(a)” (within 14 days) and “either respond to Plaintiffs’ interrogatories and requests for production in good faith or specifically tailor their objections to each question or request”, as well as requiring each discovery defendant to “prepare a statement identifying the steps taken to preserve discoverable information”, among other things.

Court Orders Defendant to Respond to Interrogatories to Identify Number of Phone Calls it Made: In Franklin v. Ocwen Loan Serv., LLC, California District Judge Susan Illston ordered the defendant to respond to interrogatories, “with, at minimum, information regarding the total number of phone calls defendant made during the relevant period to California residents (including any account associated with a California address and any account containing a California area code)” and ordered the parties to stipulate to a method for extrapolating the total number of recorded phone calls defendant made to California residents during the relevant period.

Court Rejects Carpenter Argument for Third Party Subpoena of Google Subscriber Info: In U.S. v. Therrien, Vermont District Judge Christina Reiss denied the defendant’s motion to suppress evidence obtained via a subpoena of Google for subscriber information, rejecting the defendant’s argument that the United States Supreme Court decision in Carpenter v. US forecloses the government’s ability to obtain this type of data without a warrant.

Court Denies Plaintiff’s Motion to Compel Production of ESI Related to 34 Searches: In Lareau v. Nw. Med. Ctr., Vermont District Judge William K. Sessions III denied the plaintiff’s motion to compel production of ESI related to 34 search terms proposed by the plaintiff during meet and confer with the defendant, based on the extrapolation from a single search term that the plaintiff’s production request would require 170 hours of attorney and paralegal time and would produce little, if any, relevant information.

Discovery Can’t Be Stayed While Motion to Dismiss is Considered, Court Says: In Udeen v. Subaru of America, Inc., New Jersey Magistrate Judge Joel Schneider denied the defendants’ request that all discovery be stayed until their Motion to Dismiss is decided, but, with the proviso that only limited and focused discovery on core issues would be permitted.

Court Grants Motion to Compel Production of Telephone Records from Individual Plaintiff: In Siemers v. BNSF Railway Co., Nebraska Magistrate Judge Susan M. Bazis finding that the plaintiff’s telephone records are discoverable pursuant to Fed. R. Civ. P. 26, that they are not subject to a privilege claim just because plaintiff’s counsel’s telephone number may appear in the records and that privacy issues are minimal to non-existent (since the at-issue records do not contain the substance of communications), ordered the plaintiff to produce his telephone records within one week of the order.

Court Establishes Search Protocol to Address Plaintiff’s Motion to Compel: In Lawson v. Spirit Aerosystems, Inc., Kansas Magistrate Judge Angel D. Mitchell granted in part and denied in part the plaintiff’s motion to compel, ordering the defendant to produce documents related to two requests and, with regard to a third request, ordering the defendant to “produce these documents to the extent that such documents are captured by the ESI search protocol.”

Court Upholds Decision Not to Compel Plaintiff to Produce Unredacted Narrative of Events: In Kratz v. Scott Hotel Group, LLC, Indiana District Judge Tanya Walton Pratt, stating “[t]o invoke schoolyard vernacular: no do-overs”, denied the defendant’s objections to the Magistrate Judge’s decision not to compel the plaintiff to produce versions of an unredacted narrative of events associated with his hotel stays and interactions with hotel staff.

Plaintiff Requests His Entire PST File, Court Says No: In Russell v. Kiewit Corp., Kansas Magistrate Judge James P. O’Hara denied the plaintiff’s motion seeking to compel supplemental discovery responses by the seven defendants, including the request to receive his entire e-mail personal storage (PST) file, agreeing with the defendants’ contention that the request was overly broad and not proportional.

Despite Protective Order, Court Orders Plaintiff to Produce Source Code and Log File Printouts: In Opternative, Inc. v. Jand, Inc., New York Magistrate Judge Sarah Netburn granted in part and denied in part the defendant’s motion to compel the plaintiff to produce printouts of two files of source code, a printout of a log file, and a listing of directories and files.  Judge Netburn ordered the plaintiff to produce the source code and log file printouts requested, but not the file directory listing, choosing to reserve judgment on that for the time being.

Court Denies Plaintiff’s Request to Avoid Forensic Imaging of Devices in Apple Performance Case: In the case In Re: Apple Inc., California District Judge Edward J. Davila denied the plaintiffs’ motion to modify the Special Discovery Master order that authorized the forensic imaging of devices belonging to 10 of the more than 90 named plaintiffs in order to allow Apple’s outside experts to performance test the devices, finding that “Apple’s interest in performance testing the forensic images outweighs Plaintiff’s privacy interest because Plaintiffs put the performance of the devices at the center of the lawsuit”.

Court Denies Petitioners’ Motion to Quash, But Also Finds Subpoena Is Not Within Scope of Discovery: In the case In re Verizon Wireless, Maryland Magistrate Judge Charles B. Day denied the petitioners’ Motions to Quash the respondents’ subpoena, finding that the petitioners did not have sufficient standing to have the subpoena quashed for phone numbers owned by Prince George’s County.  However, Judge Day also found that the subpoena was overbroad and was not within the scope of discovery and, as a result, granted the petitioners’ Motions for Protective Orders.

Court Denies Criminal Defendant’s Motion to Suppress Evidence Obtained via Warrantless Search: In United States v. Caputo, Oregon District Judge Karin J. Immergut denied the defendant’s motion to suppress emails and evidence derived from a warrantless search of Defendant’s workplace email account, finding “any expectation of privacy in Defendant’s work email was objectively unreasonable under the military’s computer-use policies in effect at his workplace.”

One more day to go!  What category will we cover tomorrow that had the most cases we covered this past year?  Stay tuned!

Want to take a look at cases we covered the previous eight years?  Here they are:

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.

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.

2019 eDiscovery Case Law Year in Review, Part 2

As we noted yesterday, eDiscovery Daily published 66 posts related to eDiscovery case decisions and activities over the past year, covering 56 unique cases!  Yesterday, we looked back at cases related to passwords and Fifth Amendment protection, non-party discovery and mobile and messaging.  Today, let’s take a look back at cases related to cooperation, form of production, privilege and confidentiality disputes, social media related disputes and a key case regarding biometric security.

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!

It’s also worth noting that Tom O’Connor and I will once again be discussing some of these cases – and what the legal profession can learn from those rulings – on our webcast on Wednesday, January 29thImportant eDiscovery Case Law Decisions of 2019 and Their Impact on 2020 at noon CT (1pm ET, 10am PT).  The webcast is CLE accredited in selected states, so come check it out!

BIOMETRIC SECURITY

When a 14-year old takes a class trip to Six Flags and his fingerprint is biometrically captured without parental approval, a lawsuit ensues.  This case might have had a different result in 47 other states as only three states (Texas and Washington, in addition to Illinois) have biometric security laws:

Illinois Court Says Biometric Fingerprint is Violation of Privacy, Even Without Injury: On January 25, the Illinois Supreme Court rejected an argument from a popular theme park that would have limited a state law that requires consent for the use of facial recognition and other biometrics.  The January ruling involved Six Flags, which allegedly fingerprinted a 14-year-old visitor without parental approval. Contesting the case, Six Flags argued it couldn’t be held liable unless the plaintiff demonstrated a tangible injury from the unauthorized collection, often a difficult task in privacy lawsuits.

COOPERATION

Technically, you could argue that all cases involve a lack of cooperation on discovery.  But, this case – where an attorney sought sanctions against another for hanging up on him – is a unique example of lack of cooperation:

Court Denies Sanction Request for Attorney Who Hung Up on Opposing Counsel One Time: In Ewing v. Aliera Healthcare, California Magistrate Judge Linda Lopez denied the plaintiff’s motion for sanctions for “rudely and unprofessionally” hanging up on the plaintiff during a call that defendant’s counsel made to the plaintiff to cancel a meet and confer appointment.

FORM OF PRODUCTION

We certainly didn’t see near as many form of production disputes as last year, where we had ten cases dealing with the issue in 2018.  Here is one such case from 2019:

Court Denies Defendant’s Motion to Compel Production of Documents and Metadata: In Washington v. GEO Group, Inc., Washington District Judge Robert J. Bryan denied the defendant’s Motion to Compel Production of Documents and Metadata, ruling that the defendant “fails to identify a specific response for production to which the State did not respond”, that the defendant “has not shown that the [metadata] is relevant and proportional to the needs of the case” and that the “the parties have not met and conferred as to this recent log as required under Fed. R. Civ. P. 37(a)(1).”

SOCIAL MEDIA RELATED CASES

There are always a handful of cases each year related to discovery of social media data.  However, this year we had two social media related cases of a different sort – involving judge “friending” of participants in litigation (one party, one attorney – that one was technically a 2018 ruling, but we covered it last year).  Oh, and a photo on social media can be discoverable simply because you’re “tagged” in it.  Here are five social media related cases:

Relying on Interpretation of the SCA, Appeals Court Reverses Subpoenas Against Facebook: In Facebook, Inc. v. Wint, the District of Columbia Court of Appeals, stating that “[t]he plain text of the SCA (Stored Communications Act) thus appears to foreclose Facebook from complying with Mr. Wint’s subpoenas”, concluded that the appellee “has not established the existence of a serious constitutional doubt that could warrant application of the doctrine of avoidance” reversing the trial court’s order holding Facebook in civil contempt for refusing to comply with subpoenas served by appellee Daron Wint.

NY Appeals Court Extends Discoverability of Social Media Photos to “Tagged” Photos: In Vasquez-Santos v. Mathew, the New York Appellate Division, First Department panel “unanimously reversed” an order by the Supreme Court, New York County last June that denied the defendant’s motion to compel access by a third-party data mining company to plaintiff’s devices, email accounts, and social media accounts, so as to obtain photographs and other evidence of plaintiff engaging in physical activities and granted the defendant’s motion.

Judge’s Facebook Friendship with Party Causes Decision to Be Reversed and Remanded to Different Judge: In the case In Re the Paternity of B.J.M., the Court of Appeals of Wisconsin, concluding that “the circuit court’s undisclosed ESM connection with a current litigant in this case {by accepting a Facebook “friend” request from the litigant} created a great risk of actual bias, resulting in the appearance of partiality”, reversed and remanded the case for further proceedings before a different judge.

Court Sanctions Plaintiff for Spoliation of Facebook Account: In Cordova v. Walmart Puerto Rico, Inc. et al., Puerto Rico District Judge Aida M. Delgado-Colon granted in part and denied in part the defendant’s motion to dismiss for fraud on the Court, denying the defendant’s request for dismissal, but imposing a sanction of adverse inference regarding the content of the plaintiff’s Facebook page and her deletion of the related account.  Judge Delgado-Colon also ordered the defendant to “submit a proposed adverse-inference jury instruction to that effect before trial.”

Another Case of Judicial “Friending”, But with a Different Result: “Should a judge be disqualified from a case based solely on a Facebook friendship with one of the attorneys?”  The Florida Supreme Court recently answered the question in the negative in Law Offices of Herssein & Herssein, P.A. v. United Servs. Auto. Ass’n, when it held that “an allegation that a trial judge is a Facebook ‘friend’ with an attorney appearing before the judge, standing alone, is not a legally sufficient basis for disqualification.”

PRIVILEGE AND CONFIDENTIALITY

We always have a handful of cases involving disputes regarding privilege and confidentiality and this year was no different.  One of those cases was certainly unique in that it involved “clawback” of an inadvertent disclosure of privileged ESI (which was granted), but the inadvertently disclosed ESI was still used to determine sanctions against that party.  Here are five cases that dealt with privilege and confidentiality disputes:

Court Rules That Privilege Assertion and Potential Fraud Don’t Mix: In Gates Corp. v. CRP Indus., Inc., Colorado Magistrate Judge Kristen L. Mix overruled the Defendant’s Objection to Report and Recommendation of Special Master on Gates Corporation’s Motion to Pierce Attorney/Client Privilege and proceeded with the Discovery Master’s recommendation, ordering the defendant to submit for in camera review readable and searchable versions of the documents identified as privileged by the defendant (along with an Excel spreadsheet of the privilege log) to the Special Master for review.

Appellate Court Vacates Order Allowing Plaintiff’s Expert Access to Defendant’s ESI Prior to Privilege Determination: In Crosmun v. Trustees of Fayetteville Technical Community College, the Court of Appeals of North Carolina, holding that the trial court abused its discretion by compelling production through a protocol that provided the plaintiffs’ expert with direct access to potentially privileged information and precluded reasonable efforts by Defendants to avoid waiving any privilege, vacated the order and remand for further proceedings not inconsistent with its opinion.

Wal-Mart is Allowed to Clawback Inadvertent Disclosures, But Still Sanctioned Over What They Revealed: In Bellamy v. Wal-Mart Stores, Texas, LLC, Texas District Judge Xavier Rodriguez ruled that the defendant was entitled to “claw back” the documents it inadvertently produced in the case, but still considered those documents in analyzing the plaintiff’s motion for sanctions and granted that motion to the extent that he ruled that the defendant could not assert any comparative negligence defense in this case, including arguing that the danger (of a pallet being left unattended in the store) was open and obvious.

Court Agrees that Emails Including Counsel Aren’t Privileged Because They Don’t Offer Legal Advice: In Guardiola v. Adams Cty. School District No. 14 et al., Colorado District Court Judge Raymond P. Moore overruled the defendants’ objection to the magistrate judge’s order compelling them to disclose three e-mails that they contended were subject to the attorney-client privilege, ruling that “[t]he disputed e-mails do not directly request or offer legal advice.”

Court Denies Motion to Redact Portions of eDiscovery Teleconference: In Pacific Biosciences of California, Inc. v. Oxford Nanopore Tech., Inc. et al., Delaware Magistrate Judge Jennifer L. Hall denied the defendants’ Motion to Redact Portions of the August 14, 2019 Discovery Teleconference and the related submissions, stating: “The public has an interest in understanding judicial proceedings, even if they have a limited interest in documents submitted in connection with discovery dispute proceedings.”

We’re only halfway done!  Tomorrow, we will cover cases related to disputes regarding proportionality vs. relevancy vs. privacy.  Stay tuned!

Want to take a look at cases we covered the previous eight years?  Here they are:

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.

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.

2019 eDiscovery Case Law Year in Review, Part 1

It’s that time of year again!  Time for our annual review of eDiscovery case law!  This is our ninth(!) annual review of cases that we covered on the eDiscovery Daily blog over the past year.  As always, we had a number of interesting cases related to various eDiscovery topics.  So, as we have done for the last eight(!) years, let’s take a look back at 2019!

Last year, eDiscovery Daily published 66 posts related to eDiscovery and data privacy case decisions and activities over the past year, covering 56 unique cases!  The same number of cases as last year and less than a lot of years (believe it or not).  We’re up to 719 lifetime case law related posts, covering 558 unique cases since our inception back in 2010.  And, all case law posts are still online and available for research!  :o)

As always for the cases we did cover, we grouped them into common subject themes and will review them over the next few posts.  A few of them could be categorized in more than one category, so we took our best shot (let’s face it, there were a ton of sanctions cases we covered, but chose to classify some of them in other areas).  Perhaps you missed some of these?  Now is your chance to catch up!

It’s also worth noting that Tom O’Connor and I will once again be discussing some of these cases – and what the legal profession can learn from those rulings – on our webcast on Wednesday, January 29thImportant eDiscovery Case Law Decisions of 2019 and Their Impact on 2020 at noon CT (1pm ET, 10am PT).  The webcast is CLE accredited in selected states, so come check it out!

PASSWORDS AND FIFTH AMENDMENT PROTECTION

What better place to start than two of the most notable cases of this (or any other) year, dealing with forced provision of device passwords and the application of the “foregone conclusion” exception of the Fifth Amendment protection against self-incrimination. The only thing “common” about the result of these two cases is that they involved the Commonwealth of two different states.  Expect more cases to follow in this area:

In Decision That Sounds the “Death Knell” for Fifth Amendment Protection, Defendant Ordered to Provide Cell Phone Password: In Commonwealth v. Jones, the Supreme Judicial Court of Massachusetts reversed a lower court judge’s denial of the Commonwealth’s renewed Gelfgatt motion (where the act of entering the password would not amount to self-incrimination because the defendant’s knowledge of the password was already known to the Commonwealth, and was therefore a “foregone conclusion” under the Fifth Amendment and art. 12 of the Massachusetts Declaration of Rights), and the court remanded the case to the Superior Court for entry of an order compelling the defendant to enter the password into the cell phone at issue in the case.

Pennsylvania Supreme Court Rules that Forcing Provision of Computer Password Violates the Fifth Amendment: In Commonwealth v. Davis, the Supreme Court of Pennsylvania, in a 4-3 ruling, overturned a lower-court order that required a criminal suspect to turn over a 64-character password to his computer, concluding that “compelling the disclosure of a password to a computer, that is, the act of production, is testimonial” and rejecting the Commonwealth’s argument that provision of the password was a foregone conclusion, finding that “the prohibition of application of the foregone conclusion rationale to areas of compulsion of one’s mental processes would be entirely consistent with” US Supreme Court decisions.

NON-PARTY DISCOVERY

It seems that one of the biggest trends of the year were cases where litigants were battling with non-parties to their cases to get the court to decide whether to order those non-parties to produce what was requested.  Here are six cases last year where courts decided on non-party discovery requests:

Court Denies Non-Party’s Request to Quash Subpoena in Telecommunications Dispute: In Fair v. Commc’ns Unlimited Inc., Missouri District Judge Rodney W. Sippel denied the motion to quash discovery filed by non-party Charter Communications (Charter), finding that the plaintiff had demonstrated that she had been unable to obtain the information from the defendants, that her request was not overbroad or unduly burdensome, that the information requested would not disclose personally identifiable information (PII) and that any sensitive or confidential information could be protected with redactions or a protective order.

Florida Appeals Court Upholds Ruling that Non-Party Had No Duty to Preserve Evidence: In Shamrock-Shamrock, Inc. v. Remark, the District Court of Appeal of Florida, Fifth District affirmed the summary final judgment in favor of the Appellee, holding that Florida law does not impose a duty on nonparties to litigation to preserve evidence based solely on the foreseeability of litigation.

Court Orders Plaintiff to Share in Discovery Costs of Non-Party: In Lotus Indus., LLC v. Archer, Michigan Magistrate Judge Anthony P. Patti granted in part and denied in part without prejudice non-party City of Detroit Downtown Development Authority’s (DDA) motion for protective order in connection with the Court’s order granting in part and denying in part the plaintiff’s motion to compel documents requested by subpoena, ordering the plaintiff to pay some of DDA’s discovery costs, but not as much as DDA requested.

Court Rejects Plaintiff’s Timeliness and Form Served Arguments; Grants Defendant’s Motion to Compel: In Frey v. Minter, Georgia Chief U.S. District Court Judge Clay D. Land rejected the plaintiff’s arguments that the defendant’s discovery requests were untimely and were not properly served and granted the defendant’s motion to compel against the plaintiff.  With regard to the defendant’s motion to compel against a non-party law firm, Judge Clay ordered that firm to provide the defendant with an estimated cost for responding to the requests, and upon payment of those costs, to produce the documents within twenty-one days.

Court Denies Plaintiff’s Request to Hold Non-Party in Contempt for Failing to Produce Native Files: In Smith v. TFI Family Services, Inc., Kansas Magistrate Judge Gwynne E. Birzer denied the Plaintiff’s Motion for Order Against Defendant State of Kansas Department for Children and Families to Show Good Cause Why it Should not be Held in Contempt and Motion for Sanctions for failing to produce ESI in native format with associated metadata.  Judge Birzer found that “Plaintiff cannot point to a ‘specific and definite’ section of the Court’s June 8, 2018 Order requiring specific types of ESI be produced or requiring records be produced in native format with associated metadata” and also that “Plaintiff has not made a particularized showing” why re-production of the PDF documents in native format with associated metadata “is relevant to the case at hand”.

Court Grants Motion to Compel in Elizabeth Holmes Theranos Criminal Case: In United States v. Holmes, et al, California District Court Judge Edward J. Davila granted the defendants’ motion to compel federal prosecutors to produce material responsive to six requests from the Food and Drug Administration (FDA) and the Centers for Medicare and Medicaid Services (CMS), disagreeing with the prosecution’s contention that it could not be compelled to produce documents from under Rule 16 because it lacked access to them.

MOBILE AND MESSAGING

One thing is clear – we are starting to see more and more cases where discovery of mobile device data and messaging application data (including data from ephemeral messaging applications) are part of discovery disputes, especially when parties fail to preserve that data.  Here are six cases that dealt with disputes regarding mobile and messaging data (two of them involved celebrities!):

Court Declines to Order Plaintiff to Produce Cell Phone in Employment Discrimination Case: In Santana v. MKA2 Enterprises, Inc., Magistrate Judge Teresa J. James denied the defendant’s Motion to Compel regarding the defendant’s request for the plaintiff to produce all of his cellphones for inspection and copying.  Judge James did order the plaintiff to “produce complete copies of all responsive text messages to the extent they have not already been produced.”

In Lawsuit Over Prince Music, Court Grants Monetary But Not Adverse Inference Sanctions (Yet): In Paisley Park Enter., Inc. v. Boxill, Minnesota Magistrate Judge Tony N. Leung granted in part the plaintiffs’ Motion for Sanctions Due to Spoliation of Evidence, ordering the Rogue Music Alliance (“RMA”) Defendants to pay reasonable expenses, including attorney’s fees and costs, that Plaintiffs incurred as a result of the RMA Defendants’ “misconduct”, and also ordered the RMA Defendants to pay into the Court a fine of $10,000, but chose to defer consideration of adverse inference instruction sanctions to a later date, closer to trial.

No Proof of Intent to Deprive Means No Adverse Inference Sanction: In DriveTime Car Sales Company, LLC v. Pettigrew, Judge George C. Smith granted in part and denied in part the plaintiff’s motion for spoliation sanctions against defendant Pauley Motor, denying the plaintiff’s request for an adverse inference sanction by ruling that “DriveTime has not sufficiently demonstrated that Pauley Motor acted with the requisite intent” when Bruce Pauley failed to take reasonable steps to preserve text messages when he switched to a different phone.  Judge Smith did “order curative measures under Rule 37(e)(1)”, allowing the plaintiff to “introduce evidence at trial, if it wishes, of the litigation hold letter and Pauley Motor’s subsequent failure to preserve the text messages.”

Court Recommends Finding of Intent to Deprive for Defendant’s Lost Text Messages: In NuVasive, Inc. v. Kormanis, North Carolina Magistrate Judge L. Patrick Auld recommended that, “because the record supports but does not compel a ‘finding that [Defendant Kormanis] acted with the intent to deprive [Plaintiff] of the [lost text messages’] use in the litigation, the Court submit that issue to the ‘jury, [with] the [C]ourt’s instruction[s] mak[ing] clear that the jury may infer from the loss of the [text messages] that [they were] unfavorable to [Defendant Kormanis] only if the jury first finds that [he] acted with the intent to deprive [Plaintiff] of the[ir] use in the litigation’”.

Mobile Phone Spoliation Ends Not One, But Two Cases for Kevin Spacey: In Commonwealth v. Fowler, a criminal prosecution, and a related civil action, Little v. Fowler, that stemmed from sexual assault allegations against the actor Kevin Spacey (whose legal name is Kevin Spacey Fowler), both cases were dismissed when the alleged victim was unable to produce a cell phone key to evidence in the two cases.

Court Infers Bad Faith for Plaintiffs Use of Ephemeral Messaging App: In Herzig v. Arkansas Foundation for Medical Care, Inc., 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.”

We’re just getting started!  Tomorrow, we will cover cases related to cooperation, form of production, privilege and confidentiality disputes, social media related disputes and a key case regarding biometric security.  Stay tuned!

Want to take a look at cases we covered the previous eight years?  Here they are:

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.

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.

Here’s a Webcast to Learn about Key Case Law for 2019 and How it Affects 2020: eDiscovery Webcasts

Hindsight is 2020.  Get it?  ;o)  With that in mind, 2019 was another notable year for eDiscovery case law with several significant rulings that stand to impact eDiscovery practices, the admissibility of evidence and the potential of sanctions for discovery violations.  How can these key case law decisions affect discovery within your organization?  Here’s a webcast that will discuss key case law rulings from last year and their impact on this year – and beyond.

Wednesday, January 29th at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Important eDiscovery Case Law Decisions of 2019 and Their Impact on 2020. In this one-hour webcast that’s CLE-approved in selected states, we will cover key 2019 case law decisions covered by the eDiscovery Daily blog and what the legal profession can learn from those rulings. Topics include:

  • Biometric Fingerprint Scanning and Privacy
  • Non-party ESI Requests in Litigation
  • Social Media Trends and Judge “Friending”
  • Password Provision and Fifth Amendment Protection
  • Staying Discovery while a Motion to Dismiss is Considered
  • Case Law Trends in Ephemeral Messaging App Discovery
  • Case Law Trends in Mobile Device Discovery
  • Sanctions Trends under Rule 37(e)
  • Sanctions and Case Strategy
  • Inadvertent Disclosures and Sanctions

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn how key case law rulings from last year can impact this year, this webcast is for you!

So, what do you think?  Are you big on case law and like to second guess judicial decisions?  If so, please join us!  If not, please join us anyway!  And, 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 Orders Defendants to Produce Laptop for Forensic Examination – Again: eDiscovery Case Law

In HealthPlan Servs., Inc. v. Dixit, et al., No.: 8:18-cv-2608-T-23AAS (M.D. Fla. Dec. 19, 2019), Florida Magistrate Judge Amanda Arnold Sansone granted the plaintiff’s motion to order a group of defendants (the “Dixit defendants) to comply with the court’s previous order compelling immediate inspection of a laptop of one of the defendants.  Judge Sansone also granted the plaintiff’s motion for fees, sanctions, a jury instruction, and order to show cause why the Dixit defendants should not be held in contempt of court order to the extent that the Dixit defendants were ordered to pay the plaintiff’s reasonable expenses incurred for the meet and confers with the Dixit defendants about this issue and filing its motion.  The plaintiff’s requests for additional sanctions, a jury instruction, and an order to show cause were denied without prejudice pending the forensic examination of the laptop.

Case Background

In this case involving copyright infringement and breach of contract (among other issues), the court granted the plaintiff’s oral motion to compel immediate inspection of defendant Feron Kutsomarkos’s laptop in defendant Rakesh Dixit’s possession on October 16, 2019. The court required Mr. Dixit to turn over the hard drives from Ms. Kutsomarkos’s laptop to his attorneys by October 19, which he did.  The court also required the plaintiff to identify an expert and gave the Dixit defendants ten days to object as required by the protective order.  Counsel for the Dixit defendants responded by saying “we object to your expert designation in relation to the hard drive matter address in the Order at Doc. 200.”

The plaintiff contended that the Dixit defendants did not provide good cause for objecting to the plaintiff’s selected expert and speculated that the Dixit defendants’ refusal to turn over the hard drive to the expert may be an attempt to cover up spoliation by the Dixit defendants.  In response, the Dixit defendants argued the plaintiff’s comments at the October 16 hearing suggested the drives were only to be forensically imaged, even though the plaintiff had stated that it was “creating a forensic image so that we can evaluate the documents that were produced and ensure that they’re properly preserved and that we’ve received the entirety of the documents that we’ve requested”.  The Dixit defendants also argued a different legal standard exists for permitting a forensic examination of the hard drives rather than permitting a mere image and cited Garrett v. University of South Florida Board of Trustees, No. 8:17-cv-2874-T-23AAS, 2018 WL 4383054 (M.D. Fla. Sept. 14, 2018) to support that contention.

Judge’s Ruling

With regard to the case cited by the Dixit defendants, Judge Sansone stated: “The Dixit defendants’ reliance on Garrett for the legal standard is misplaced. In Garrett, the plaintiff produced the recording sought by the defendant, but the defendant requested a forensic examination to see if there was evidence of an attempt to tamper with the recording…Here, counsel for Ms. Kutsomarkos noted Ms. Kutsomarkos provided pdf versions of documents from the laptop…However, the pdf files scrubbed the metadata from the documents and that metadata should be available on the hard drives…Also, the computer in Garrett was a personal computer, but here the computer was Ms. Kutsomarkos’s business computer and she gave it to Mr. Dixit, her employer.”

Judge Sansone also stated: “Since Ms. Kutsomarkos did not correctly comply with prior discovery requests by producing from the laptop incorrectly formatted documents with limited information, the court determined a forensic examination of the laptop was warranted…Ms. Kutsomarkos also conducted her own search of the emails rather than having an expert or her attorney conduct the search…Also, Mr. Dixit, another defendant, searched and recovered the same files Ms. Kutsomarkos produced in the native format…HealthPlan also conveyed certain documents that should have come from a professional search of the laptop were missing…These factors satisfy exceptional circumstances to warrant a forensic examination. Noting, the cost and burden for the forensic examination is falling on HealthPlan, who wants to confirm everything was turned over to them.”

As a result, Judge Sansone granted the plaintiff’s motions as noted above and denied without prejudice the plaintiff’s additional requests pending the forensic examination of the laptop.

So, what do you think?  Did the court go far enough to address the defendant’s discovery failings?  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 Enters Parties’ Order for Discovery of ESI: eDiscovery Case Law

It’s a rare, if not unheard of, case law post that discusses an agreement between parties, not a dispute!  Just in time for the holidays!  Actually, early last month, but still…  ;o)

In Shotwell, et al. v. Zillow Group Inc., et al., No. C17-1387-JCC (W.D. Wash. Nov. 7, 2019), Washington District Judge John C. Coughenour entered an order regarding the discovery of electronically stored information (“ESI”), pursuant to the parties’ stipulation and proposed order.

The order included the following sections:

  • General Principles, which notes, along with proportionality guidelines per Fed. R. Civ. P. 26(b)(1), that “An attorney’s zealous representation of a client is not compromised by conducting discovery in a cooperative manner.”
  • ESI Disclosures, which states that the parties will disclose within thirty days after the Fed. R. Civ. P. 26(f) conference (or later if agreed) custodians, non-custodial data sources, third party data sources and inaccessible data.
  • Preservation of ESI, which notes guidelines for the parties regarding preservation and what they don’t have to preserve (absent a showing of good cause by the requesting party, that is).
  • Privilege, Guidelines for privilege logs and handling of inadvertent disclosures of privileged documents.
  • ESI Discovery Procedures, includes definitions and specifications for image load file formats, production of hard copy documents and production of ESI (including things like handling of exceptions, production of metadata, handling of duplicates, handling of parent-child relationships, format of Bates numbers and handling of third-party subpoenas). The parties agreed to produce the ESI in single-page Group IV TIFF image format using at least 300 DPI print setting, except for certain files (Excel files, spreadsheet files, .CSV files, source code, audio, and video) which would be produced natively with a placeholder image.  There was a table of metadata to be produced associated with the discovery specifications, but it was not included in the order.
  • Miscellaneous, to cover things like conflict between the provisions of the agreement and the Stipulated Protective Order (the Protective Order will take precedent) and reiteration of protection of privilege.

It’s nice to cover an agreement between parties for a change and this discovery agreement is a good example of parties cooperating effectively on a plan for discovery.

So, what do you think?  Do you see any issues with this agreement?  I predict somebody will have at least one!  ;o)  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 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.

Court Denies Criminal Defendant’s Motion to Suppress Evidence Obtained via Warrantless Search: eDiscovery Case Law

In United States v. Caputo, No. 3:18-cr-00428-IM (D. Or Nov. 6, 2019), Oregon District Judge Karin J. Immergut denied the defendant’s motion to suppress emails and evidence derived from a warrantless search of Defendant’s workplace email account, finding “any expectation of privacy in Defendant’s work email was objectively unreasonable under the military’s computer-use policies in effect at his workplace.”

Case Background

In this case where the defendant was indicted on four counts of wire fraud, the defendant filed a motion to suppress emails and evidence derived from a warrantless search of the defendant’s workplace email account.  The Government’s response to the motion provided additional facts about the email account and the context in which it received copies of the defendant’s emails, including an image of the banner message displayed when the defendant logged on to his work computer system and two policies which governed the defendant’s computer use at work.

During the period at issue in this case, the warning banner advised (among other things) that at any time, the US Government may inspect and seize data stored on the information system.  The defendant was also subject to the Oregon National Guard’s acceptable use policy and Employees of the Oregon National Guard, including the defendant, were required to sign the policy before they received computer access. They also had to acknowledge and recertify their understanding of the policy annually.

Judge’s Ruling

Judge Immergut noted that “Defendant has not offered any evidence that he had a subjective expectation of privacy in his work email” and stated that “any expectation of privacy in Defendant’s work email was objectively unreasonable under the military’s computer-use policies in effect at his workplace.”

Judge immergut also rejected two cases that the defendant cited to support his claim of a reasonable expectation of privacy, stating that “neither case requires suppression here” and that “[u]nder these circumstances, it was objectively unreasonable for Defendant to expect privacy in his work email.”  As a result, Judge Immergut denied the defendant’s motion to suppress.

So, what do you think?  Should employees expect privacy within their work email accounts?  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.