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Cases I Will Be Covering Today During Litigation Support Day: eDiscovery Case Law

It’s a rare two-post day for us at eDiscovery Daily.  As we always do, we’re covering the notable sessions to check out at ILTACON today and that post is here.  But I’m also speaking at Litigation Support Day today in Session One (9:00 AM – 10:30 AM) on Legal Trends, discussing the most interesting case law decisions for 2019 so far with my good friend, David Horrigan!  If you’re attending that session, no need to take copious notes – the cases that we plan to discuss are also referenced and linked below so that you can check them out.  Hope to see y’all there!

Social Media Discovery and Judicial “Friending”: Here are a couple of cases that have interesting ramifications on the social media front.  Are pictures where you are “tagged” discoverable?  Should judges accept “friend” requests from litigants when a motion is pending?  See below.

  • In Vasquez-Santos v. Mathew, 8210NIndex 158793/13 (N.Y. App. Div. Jan. 24, 2019), 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.
  • In the case In Re the Paternity of B.J.M., Appeal No. 2017AP2132 (Wis. App. Feb. 20, 2019), 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.

Fifth Amendment and Passwords: Are mobile device passwords protected by the Fifth Amendment?  See below.

  • In Commonwealth v. Jones, SJC-12564 (Mass. Mar. 6, 2019), 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.

Discovery vs. Dismissal Motions: Should discovery be stayed until a motion to dismiss is decided?  See below.

Case Strategy vs. Sanctions: Would a party actually object to having a claim against it dismissed to keep alive the possibility of sanctions against the opposing party?  See below.

Mobile Device Discovery and Sanctions: How often are we seeing cases involving spoliation of mobile device data?  And, how difficult is it to obtain significant sanctions in those cases?  See below.

  • In DriveTime Car Sales Company, LLC v. Pettigrew, No.: 2:17-cv-371 (S.D. Ohio Apr. 18, 2019), 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.”
  • In NuVasive, Inc. v. Kormanis, No. 1:18CV282 (M.D.N.C. Mar. 13, 2019), 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’”.
  • In Paisley Park Enter., Inc. v. Boxill, No. 17-cv-1212 (WMW/TNL), (D. Minn. Mar. 5, 2019), 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.
  • In Legaltech® News, David Horrigan discusses the case 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) and turned on the availability of a mobile device.

Bonus Case! In Marshall v. Brown’s IA, LLC, No. 2588 EDA 2017 (Pa. Super. Mar. 27, 2019), the Superior Court of Pennsylvania, ruling that the trial court “abused its discretion in refusing the charge” of an adverse inference sanction against the defendant for failing to preserve several hours of video related to a slip and fall accident, vacated the judgment issued by the jury within the trial court for the defendant and remanded the case for a new trial.

So, what do you think?  Are you attending ILTACON this year?  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.

Another Case of Judicial “Friending”, But with a Different Result: eDiscovery Case Law

This is the second case we’ve seen recently regarding judges and Facebook “friendship” with other parties – here’s the other one where the case was the reversed and remanded for further proceedings before a different judge due to the judge’s Facebook “friendship” with one of the parties.  This time, it’s the judge’s Facebook friendship with one of the attorneys in the case.  This one had a different outcome.

In the Florida Bar Journal web site (Face-Off on Facebook: Judges and Lawyers as Social Media “Friends” in a Post-Herssein World, written by Ralph Artigliere, William F. Hamilton, David Hazouri, Jan L. Jacobowitz, and Meenu Sasser), the authors ask the question: “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, Case No. SC17-1848, (Fla. Nov. 15, 2018), 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.”

The decision brings Florida in line with the majority view in other states that “have adopted an attitude of, ‘it’s fine for judges to be on social media, but proceed with caution.’”

The authors do a great job discussing the scope of the decision, traditional standards for reasonable basis for a motion to disqualify, the explosion of social media, aspects of judicial disqualification historically and guidance for lawyers and judges after the decision, among other topics.  Instead of recounting them here, I encourage you to read the article.

When we covered the other case – In Re the Paternity of B.J.M., Appeal No. 2017AP2132 (Wis. App. Feb. 20, 2019) (technically after the case written about in the Florida Bar Journal site covered in this post) – in our webcast last week (Key eDiscovery Case Law Review for the First Half of 2019), I asked Tom O’Connor if judges should ever accept social media friend requests from litigants.  Of course, he gave the answer I would have expected: “it depends”.  In the case we covered, the judge deciding the motion accepted one of the party’s “friend” request on Facebook – after the parties had submitted their written arguments – and he ultimately ruled in her favor.  Even though the Judge didn’t “like” or comment on any of the party’s posts or reply to any of her comments on his posts, when he subsequently granted the party’s modification motion.  The Court of Appeals of Wisconsin, concluding that “the circuit court’s undisclosed ESM connection with a current litigant in this case 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.  Clearly, timing played a part in that ruling.  So, should judges be friends with parties or attorneys appearing in their cases?  It depends.  :o)

So, what do you think?  Should judges accepting friend requests from litigants or attorneys disqualify them from ruling in their cases?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

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

Mobile Phone Spoliation Ends Not One, But Two Cases for Kevin Spacey: eDiscovery Case News

If you keep track of Hollywood news, you probably already know this story.  But, as David Horrigan discussed in an article last week, you may not know all the details or what it might mean for future cases.

In Legaltech® News (Commonwealth v. Fowler: What the Kevin Spacey Cases Mean for E-Discovery and the Law), David discusses the case Commonwealth v. Fowler, a criminal prosecution, and a related civil action, Little v. Fowler, stem from sexual assault allegations against the actor Kevin Spacey (whose legal name is Kevin Spacey Fowler).

In allegations that made headlines around the world two years later, an 18-year-old employee of a Nantucket restaurant claimed that, in the summer of 2016, Spacey plied him with alcohol and groped him at the restaurant. Of course, Spacey’s lawyers had a different take, arguing the encounter was a “mutual and consensual flirtation” and that the employee had told Spacey he was 23.  And, also of course, Spacey’s lawyers demanded discovery of the employee’s mobile phone, seeking text, video and Snapchat data from the date of the incident to the date of the discovery request.

Text messages between the employee and his girlfriend – purported to have been sent at the time of the alleged incident – had already been entered into the court record via screenshots. They included descriptions of the alleged incident by the employee and text responses from his girlfriend, including some with multiple emojis.  However, Spacey’s defense counsel argued that some of the text messages had been edited and the employee’s mother, a former Boston television news reporter, admitted that she had deleted some data (which she claimed was unrelated to the alleged incident) from the phone before turning it over to law enforcement.

But, that wasn’t the worst issue related to the phone.  The phone itself disappeared.  Law enforcement notes indicated the mobile phone had been returned to the employee’s family, but the family’s attorney told the court, “My clients do not recall ever receiving the phone.”  And, although the employee’s family said the phone had been backed up, Spacey’s counsel argued that wasn’t good enough and that they were entitled to the phone itself.  When Spacey’s counsel asked the employee whether he knew altering evidence was a crime, the employee invoked his Fifth Amendment protection against self-incrimination, which resulted in the charges being dropped in the criminal case (after the civil case had already been dropped a few days before).  No phone = two cases closed.

In his article, David notes several interesting considerations from the cases, ranging from discovery of mobile devices to the use of emojis to the significance of social media (with a Snapchat video being important in the case as well).  Probably his most notable observation was whether the loss of the phone would have thrown out the evidence in the civil case with amended FRCP Rule 37(e) providing that sanctions were available when evidence “cannot be restored or replaced through additional discovery.”  Those phone backups might have led to a different result in the civil case.

I already noted that in our webcast last week (Key eDiscovery Case Law Review for the First Half of 2019), Tom O’Connor and I discussed several cases (including this one, this one and this one) where spoliation and sanctions associated with smartphone ESI were the key issue being addressed.  Chalk up another one.

BTW, speaking of David: As I noted before, I am speaking at ILTACON in a couple of weeks as part of ILTACON’s brand new Litigation Support Day, which features a DAY of SPARK (Short, Provocative, Action-oriented, Realistic, and Knowledgeable) talks by leaders in the industry.  I will be participating in Session One – Litigation Support State of the Union from 9:00-10:30am that day (my talk is slated for approximately 9:35). I will be speaking about legal trends in the industry, with David moderating, so that means recent case law trends that should be interesting.  Do you think mobile device discovery will be one of those trends?  If you’re planning to be at ILTACON, come find out!

So, what do you think?  Would the phone backups have enabled the civil case to continue?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Netflix

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 Sanctions Plaintiff for Spoliation of Facebook Account: eDiscovery Case Law

Shark Week on the Discovery Channel concludes this weekend, which means Case Week on the eDiscovery Channel (a.k.a., eDiscovery Daily) concludes as well (don’t be sad, it will be back next year!).  During our webcast on Wednesday on Key eDiscovery Case Law Review for the First Half of 2019 (which, if you missed it, can be viewed here), Tom O’Connor and I discussed several cases that couldn’t quite get to the stage of issuing an adverse inference sanction for spoliation of ESI.  This case shows that there are still cases out there where these sanctions happen – when the intent to deprive is clear enough.

In Cordova v. Walmart Puerto Rico, Inc. et al., No. 16-2195 (ADC) (D.P.R. July 16, 2019), 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.”

Case Background

In this case filed by the plaintiff against the defendant alleging unlawful discrimination, retaliation, and unjust dismissal, when the defendant issued a set of interrogatories and request for production of documents asking the plaintiff to disclose and produce information and documents regarding her social media accounts, among other requests. The plaintiff responded, in essence, that she once had a social media account, but that it was closed and that she did not recall the name under which she had the account.

The defendant filed a motion to compel, contending that “the discovery was relevant in order to address plaintiff’s allegations of disability and her substantial allegations of severe mental, psychological, moral and emotional pain anguish and distress, loss of happiness and loss of capacity to enjoy life.”  The plaintiff claimed that prior to the discovery request, she had lost her cell phone, after which “she tried to access [her] Facebook account using [her] home computer” but got blocked out for unsuccessful attempts to log into the account and when she got a new phone, she tried again to access her Facebook account but was unable to do so and she did not “ha[ve] access to [the] Facebook account ever again.”  In a meeting between parties, the plaintiff was unsuccessful in accessing her Facebook account.

However, on September 19, 2018, the defendant was able to identify plaintiff’s public Facebook profile under the name `Córdova Eigna’—essentially, plaintiff’s second last-name and her first name spelled backwards.  That account was opened in 2009, the plaintiff updated her cover photo on August 23, 2018, and included a comment about `living happily ever after’ and posted a comment regarding the same as recently as September 6, 2018.  That same afternoon, however, the account became unavailable.  As a result, the defendant filed a motion, asserting that the plaintiff was duplicitous about the Facebook discovery in question and requested case dismissal.

Judge’s Ruling

Judge Delgado-Colon found that “Mercado failed to comply with her obligation under Fed. R. Civ. 26(e) to supplement discovery responses to Walmart’s requests regarding her Facebook account. Specifically, taking as true Mercado’s contention that she was blocked out of said account for a period of time after having lost her cell phone, she was obligated to voluntarily inform Walmart when she later regained access and resumed her activities on Facebook. In that respect, the Court rejects Mercado’s explanation that she was unaware of having to do so because discovery had concluded, and Walmart’s summary judgment motion was pending adjudication. Those are not valid reasons for Mercado’s non-compliance with her disclosure obligations under Fed. R. Civ. P. 26(e), especially regarding an ongoing, contentious discovery issue and given that Mercado has been represented by counsel at all times in this case.”

As a result, Judge Delgado-Colon granted in part and denied in part the defendant’s motion, stating: “Walmart’s request for dismissal is denied. However, the Court hereby imposes as sanction an adverse inference regarding the content of Mercado’s Facebook page and her deletion of the related account. Accordingly, Walmart shall submit a proposed adverse-inference jury instruction to that effect before trial.”

So, what do you think?  Did the spoliation warrant the adverse inference instruction?  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.

In Search of Cases Where Production of Databases Has Been Ordered: eDiscovery Case Law

Shark Week on the Discovery Channel continues, which means Case Week on the eDiscovery Channel (a.k.a., eDiscovery Daily) continues as well.  Despite a few technical difficulties early on, Tom O’Connor and I had another great webcast yesterday on Key eDiscovery Case Law Review for the First Half of 2019 (which, if you missed it, can be viewed here).  During the webcast, one attendee asked about case law examples where parties have been ordered to produce (or provide access to) databases in response to discovery requests, so I’ve done some research and have the results here.

In his question yesterday, he provided an example of a party having to provide an actuarial database, but was looking for case law where parties have had to produce any kind of database in discovery.

With over 693 lifetime posts covering over 550 cases lifetime in eDiscovery Daily, I started with a search of cases there to see what I could find.  Here are three cases where parties were required to produce databases, or provide access to those databases or provide metadata from database systems:

Advanced Tactical Ordnance Systems, LLC v. Real Action Paintball, Inc., No. 1:12-CV-296 (N.D. Ind. Feb. 25, 2013): Indiana Magistrate Judge Roger B. Cosbey took the unusual step of allowing the plaintiff direct access to a defendant company’s database under Federal Rule of Civil Procedure 34 because the plaintiff made a specific showing that the information in the database was highly relevant to the plaintiff’s claims, the benefit of producing it substantially outweighed the burden of producing it, and there was no prejudice to the defendant.

Thorne Research, Inc. et. al. v. Atlantic Pro-Nutrients, Inc., No. 13-784 (D. Utah, Mar. 22, 2016): Utah Magistrate Judge Paul M. Warner determined that, because the parties had competing affidavits regarding whether a Microsoft Access database created by the plaintiffs’ co-inventor stores metadata and that metadata (if present) was clearly relevant, the defendant should be allowed the opportunity to conduct a forensic analysis as to whether or not the metadata exists in the native format of the Access database.

Miller v. Sauberman, Index No. 805270/16 (N.Y. Dec. 6, 2018): New York Supreme Court Justice Joan A. Madden, despite the defendant’s estimated cost of $250,000 to produce metadata related to the plaintiff’s medical records, denied the defendant’s motion for a protective order and granted the plaintiff’s cross-motion to compel the production of that metadata within 30 days of the decision and order.

Another part of the discussion related to production of source code, so here are a couple of cases where source code production was compelled (including one just last week):

ACI Worldwide Corp. v. MasterCard Technologies, LLC et. al., No. 14-31 (D. Nebraska, Oct. 27, 2016): Nebraska Magistrate Judge F.A. Gossett granted the plaintiff’s Motion to Compel Production of the defendant’s Full Source Code in part, “to the extent there are any files that MasterCard has not produced responsive to the parties’ previously established joint Search Protocol.”

Opternative, Inc. v. Jand, Inc., 17-CV-6936 (RA)(SN) (S.D.N.Y. July 12, 2019): 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.

However, I was unable to find a case where an (actual) actuarial database was required to be produced.  So, I decided to do a search in eDiscovery Assistant, which is the site we’ve been using for most of our case opinions over the past couple of years.  In a search for “actuarial”, I found a number of cases and finally found this case, all the way back from 2007:

Goshawk Dedicated Ltd. v. Am. Viatical Servs., LLC, No. 1:05-CV-2343-RWS (N.D. Ga. 2007): Georgia Richard W. Story granted the plaintiff’s Motion to Compel Production of Sequel Database, ordering the defendant to “produce, within eleven (11) days of the entry of this Order, a complete copy of the Sequel Database and a copy of any historical backup copies of the Sequel Database between 1998-2003”.

Yes, that was a request to produce their “sequel” database.  I had to laugh at that one.  :o)

So, what do you think?  Are you aware of any other cases where parties were required to produce (or provide access to) databases?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

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

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

Today’s Webcast Will Help You Learn About Key eDiscovery Case Law in 2019 (so far) and How it Affects You: eDiscovery Webcasts

Shark Week on the Discovery Channel continues, which means Case Week on the eDiscovery Channel (a.k.a., eDiscovery Daily) continues as well.  So far, 2019 has been another interesting year with notable and important case law decisions related to eDiscovery best practices. What do you need to know about the cases to avoid mistakes made by others and save time and money for your clients?  In today’s webcast, you can catch up on twenty-two (!) cases from the first half of the year and find out what they mean to you!

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Key eDiscovery Case Law Review for First Half of 2019.  This CLE-approved* webcast session will cover key case law covered by the eDiscovery Daily Blog during the first half of 2019 to identify trends that lawyers should consider for their own practices. Key topics include:

  • Can ESI related to an unsolved murder case be compelled to be produced in a related civil case?
  • Is the use of biometric fingerprint scanning technology an invasion of privacy?
  • When can non-parties be compelled to produce ESI in litigation?
  • Are social media photos that you didn’t post discoverable if you’ve been tagged in them?
  • Can sanctions be so important that you fight NOT to have a claim against you dismissed?
  • Is being forced to provide your cell phone password the “death knell” for fifth amendment protection?
  • Should a case ruling be reversed if a judge is Facebook friends with one of the parties?
  • Should discovery be stayed while a motion to dismiss is being considered?
  • Does Rule 37(e) eliminate the potential for obtaining sanctions for spoliation of ESI?

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 from past eDiscovery case law decisions, this is the webcast for you!

So, what do you think?  Do you think case law regarding eDiscovery issues affects how you manage discovery?  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 Recommends Finding of Intent to Deprive for Defendant’s Lost Text Messages: eDiscovery Case Law

Shark Week on the Discovery Channel continues, which means Case Week on the eDiscovery Channel (a.k.a., eDiscovery Daily) continues as well.  Today’s case opinion comes from March and resulted in a different opinion for failure to preserve text messages than this case we covered last week.  Enjoy!

In NuVasive, Inc. v. Kormanis, No. 1:18CV282 (M.D.N.C. Mar. 13, 2019), 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’”.

Case Background

In this case filed against a former employee over breach of contract for promoting and selling a competitor’s products within his former territory, the plaintiff notified Defendant Kormanis in March 2018 (through counsel) of its “concern[ ] that [his] new position with Alphatech will lead to … violation[s] of his contractual obligations with Ino[S]pine” and advised him “to refrain from the destruction of relevant evidence … including … texts … and to take steps to preserve all such information”.  After the case was filed, the defendant wrote in response to the plaintiff’s production requests:

“As for text messages, due to space limitations on his iPhone, Defendant Kormanis only is able to keep data on his device from the previous 30 days. In order to comply with the litigation hold letter, Defendant Kormanis backs up his iPhone to his MacBook Air so that all messages are preserved. However, at this time, Defendant Kormanis has not been able to retrieve said messages from his personal devices. Once these communications are retrieved, they will be produced.”  The defendant ultimately produced text messages on October 5, 2018, but there were no text messages produced prior to August 5, 2018.  The defendant indicated that his vendor was unable to retrieve earlier text messages from his devices, but he declined to allow the plaintiff’s vendor to examine the devices.

In his subsequent affidavit and deposition, it became clear that the defendant failed to turn off the 30-day automatic delete function on his iPhone, leading to the loss of text messages after the defendant was advised of his duty to preserve them.  Despite the defendant’s argument that “[t]he Court should deny [the instant] Motion because [Plaintiff] has failed to demonstrate that any of the allegedly spoliated text messages … would be relevant to this action”, Verizon records demonstrated that the defendant had regular text message communications with key parties in the case during that period where text messages were lost.

Judge’s Ruling

Judge Auld agreed with the plaintiff that “the relevance of these [text messages] is evident” and also stated: “Nor does any material dispute remain as to whether the loss of relevant text messages resulted from Defendant Kormanis’s failure to take reasonable steps to preserve them.”  Judge Auld also noted that failure to follow the “simple steps” of suspending the auto-delete function on his phone and utilizing “relatively simple options to ensure that [his] text messages were backed up” was “sufficient to show that Defendant [Kormanis] acted unreasonably.”

As a result, Judge Auld granted the Plaintiff’s Motion for Imposition of Sanctions for Spoliation of Evidence in part.  Judge Auld gave the plaintiff additional time to depose and subpoena text messages from a key Alphatech contact beyond the discovery deadline and ordered Defendant Kormanis to pay plaintiff’s fees/expenses associated with that effort and also all fees/expenses associated with filing, briefing and arguing the Instant Motion.  He also issued the following recommendations:

“IT IS RECOMMENDED that the Court defer until trial the decision of whether other “serious measures are necessary to cure prejudice [from the loss of text messages], such as forbidding [Defendant Kormanis] from putting on certain evidence, permitting the parties to present evidence and argument to the jury regarding the loss of information, or giving the jury instructions to assist in its evaluation of such evidence or argument, other than instructions [that it may or must presume the lost text messages were unfavorable to Defendant Kormanis],” Fed. R. Civ. P. 37 advisory comm.’s note, 2015 amend., subdiv. (e)(1).

IT IS FURTHER 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,” Fed. R. Civ. P. 37(e)(2), 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,” Fed. R. Civ. P. 37 advisory comm.’s note, 2015 amend., subdiv. (e)(2).”

So, what do you think?  Did the spoliation warrant a possible adverse inference instruction?  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 Defendant’s Motion to Compel Production of Documents and Metadata: eDiscovery Case Law

Yes, it’s that time of year!  Time for another Shark Week on the Discovery Channel, which means only one thing – it’s time for Case Week on the eDiscovery Channel (a.k.a., eDiscovery Daily).  That means a week full of case law, with our webcast on Wednesday regarding Key eDiscovery Case Law Review for First Half of 2019 in between!  Here’s the first case of Case Week!

In Washington v. GEO Group, Inc., No. 17-5806 RJB (W.D. Wash. July 1, 2019), 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).”

Case Background

In this unjust enrichment case filed by the State of Washington against a private corporation that operates a detention facility, the defendant filed a motion in August 2018 for an order compelling the State to produce information from various State agencies related to State work programs, maintaining that the information was “extremely relevant to GEO’s affirmative defenses of unclean hands and laches.”  The State opposed the motion, arguing that the State Agencies were not parties to the case and that the State agencies were better positioned to respond themselves.  In October 2018, the defendant’s motion to compel was granted.

Subsequently, the defendant moved for an order compelling the State to produce: 1) relevant information from all agencies for (a) the State’s use of work programs at its correctional or rehabilitation facilities, including why it pays some (but not all) work program participants market wages, whether the participants are volunteers, the hours worked, duties performed, and pay rates for participants, and the State’s use of contractors to assist in the operation of work programs and (b) the State’s assessment of federal and/or state law as it relates to the operation of work program; 2) accurate and complete metadata for all of its productions, including custodian and author information, dates of creation and modification, and file path without modification; and 3) logged documents on the common interest privilege log that are missing date, author, sender, recipient, or subject matter information and communications between third parties for which no basis for common interest privilege exists.

Judge’s Ruling

Regarding the motion to compel documents regarding work programs, Judge Bryan stated: “GEO’s motion to compel documents regarding the work programs should be denied. The State argues that it reviewed thousands of pages of discovery from five agencies and produced hundreds of pages responsive to the requests for production. GEO fails to identify a specific response for production to which the State did not respond. In its reply, it identifies ‘discovery categories’ and then collectively cites 17 requests for production that it asserts applies.  This is not sufficient and the motion should be denied.”

Regarding the motion to compel accurate metadata, Judge Bryan stated: “GEO’s motion for an order compelling the State to produce accurate metadata should be denied. The State indicates that it has complied with the October 2, 2018 Order to the extent that it was able, particularly as it relates to the custodians. Further, GEO has not shown that the information is relevant and proportional to the needs of the case.”

Regarding the motion to compel related to common privilege log, Judge Bryan stated: “GEO’s motion to compel either an updated common privilege log or the documents for which the State has failed to meet its burden should be denied. The State has now produced an updated log. Moreover, it appears that the parties have not met and conferred as to this recent log as required under Fed. R. Civ. P. 37(a)(1).”

As a result, Judge Bryan denied the defendant’s motion to compel.

So, what do you think?  Should the motion to compel have been denied?  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 Protective Order, Court Orders Plaintiff to Produce Source Code and Log File Printouts: eDiscovery Case Law

In Opternative, Inc. v. Jand, Inc., 17-CV-6936 (RA)(SN) (S.D.N.Y. July 12, 2019), 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.

Case Background

In this case involving alleged unlawful use of information that the plaintiff claimed the defendant used to launch a competing online eye-examination service, a big part of the case came down to source code.  The parties agreed to a protective order where “any material designated as ‘Highly Confidential — Source Code’ will not be produced in a native format…Instead, the source code must be ‘made available for inspection, in a format allowing it to be reasonably reviewed and searched, during normal business hours or at other mutually agreeable times at an office of the Producing Party’s counsel or another mutually agreed upon location’…The on-site review is highly circumscribed…It must be conducted in a ‘secured room without Internet access or network access to other computers’…The inspecting party is prohibited from copying, removing, or transferring any files from the secure location…The inspecting party may, however, request printouts ‘of limited portions of source code that are reasonably necessary for the preparation of court filings, pleadings, expert reports, discovery responses, or demonstratives (‘Papers’), or for deposition or trial, but shall not request paper copies for the purposes of reviewing the source code other than electronically.’”

Pursuant to that Order, the plaintiff designated the source code of an alleged prototype developed by Brian Strobach as highly confidential source code and the defendant’s counsel and its expert witness inspected the source code at the offices of Plaintiff’s counsel in May 2019, for about five hours.  The defendant followed up with that review by requesting printouts of twenty files, consisting of as much as 12,000 lines of code.  The plaintiff responded that it believed that this request was not compliant with the Protective Order, but that it “would be happy to consider a narrower request.”  In response, Defendant narrowed its request to printouts of: (1) two files of source code comprising 354 lines of code fitting on 6 pages; (2) a log file; and (3) a directory of the files contained in the source code written by Strobach.  The plaintiff refused, arguing that the request for the two files was not compliant with the protective order and that it would produce the log file and directory only if the defendant agreed to a reciprocal exchange.

Judge’s Ruling

With regard to the source code request and the plaintiff’s objections, Judge Netburn characterized the plaintiff’s belief that the Protective Order may allow for the use of printouts during a deposition, but that it prohibits requests for the purpose of preparing for the deposition as “frivolous”, stating “[t]hat definition would require attorneys writing their deposition outlines to sit in a secured room with the source code, away from their offices, without access to the internet or any other network. That is a significant burden that also would do nothing to promote the confidentiality of the source code.”  With regard to the plaintiff’s other objection that the defendant did not articulate why these two files were reasonably necessary for Strobach’s deposition, Judge Netburn ruled that the defendant had provided “a reasonably necessary basis for the request” that “likely would [not] be narrowed with further on-site review.”

With regard to the log file request, Judge Netburn referred to the impasse as “truly strange” and ordered the plaintiff to produce the file, ruling that “Plaintiff has not demonstrated anything resembling good cause” for denying the request and that their contention of the defendant’s definition of “Highly Confidential — Source Code” was “an airing of grievances” and “not a basis for denying Defendant’s motion.”

As for the file directory request, Judge Netburn denied the defendant’s motion without prejudice, stating: “Instead of blindly tilting the balance of this standoff, the Court will reserve its judgment. If Plaintiff or Defendant is unable to obtain file directories to its satisfaction, then they should file properly supported briefing with the Court.”

So, what do you think?  Do you agree with the judge’s reasons for ordering production of the source code and log file?  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.

No Proof of Intent to Deprive Means No Adverse Inference Sanction: eDiscovery Case Law

We’re catching up on a few cases from earlier this year in preparation for our Key eDiscovery Case Law Review for First Half of 2019 webcast next Wednesday.  Here is an interesting case ruling from April.

In DriveTime Car Sales Company, LLC v. Pettigrew, No.: 2:17-cv-371 (S.D. Ohio Apr. 18, 2019), 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.”

Case Background

In this case where the plaintiff alleged the defendants were conspiring to purchase vehicles at above market rates from Pauley Motor, the plaintiff filed a motion for spoliation sanctions against Pauley Motor.  During discovery, Pauley Motor first stated in its interrogatory responses that no text messages between Pauley Motor representatives and defendant Pettigrew existed.  However, in his 30(b)(6) deposition, Bruce Pauley stated that he had exchanged text messages with Pettigrew, but he was ultimately unable to produce the content of the text messages because he had obtained a new phone and had not preserved the contents of his previous phone, despite being put on notice to do so in November of 2016 by a litigation hold letter issued by the plaintiff’s counsel.  As a result, the plaintiff requested that the Court impose a mandatory adverse inference that the content of the text messages was unfavorable to Pauley Motor.

Judge’s Ruling

In considering the motion, Judge Smith stated that “Pauley Motor does not dispute that it had an obligation to preserve text messages between its representatives and Pettigrew or that it failed to take reasonable steps to preserve them…DriveTime has also established that the text messages cannot be restored or replaced through additional discovery, because neither Pettigrew nor the wireless carriers for Pauley Motor’s representatives have access to them either…Thus, in order to obtain the mandatory adverse inference it seeks under Rule 37(e)(2), the only additional requirement under the Rule is that Pauley Motor acted with the intent to deprive DriveTime of the text messages’ use in the litigation when it failed to preserve them.”

However, Judge Smith also said: “Although Bruce Pauley failed to take reasonable steps to preserve the text messages when he switched to a different phone, there is no evidence that he did so intentionally beyond DriveTime’s speculation. This is not sufficient to impose a mandatory adverse inference under Rule 37(e)(2).”  As a result, Judge Smith found that “DriveTime has not sufficiently demonstrated that Pauley Motor acted with the requisite intent.”

But, Judge Smith noted that “less severe sanctions are available to DriveTime under Rule 37(e)(1) upon a finding of prejudice.”  As a result, he stated that “the Court will order curative measures under Rule 37(e)(1)… In this case, the Court finds it appropriate to order that DriveTime will be permitted to introduce evidence at trial, if it wishes, of the litigation hold letter and Pauley Motor’s subsequent failure to preserve the text messages. DriveTime may argue for whatever inference it hopes the jury will draw. Pauley Motor may present its own admissible evidence and argue to the jury that they should not draw any inference from Pauley Motor’s conduct.”

So, what do you think?  Did the judge go far enough or should the failure to preserve the evidence have been considered intent to deprive?  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.