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Evidence

Similar Spoliation Case, Somewhat Different Outcome: eDiscovery Case Law

Remember the Malibu Media, LLC v. Tashiro case that we covered a couple of weeks ago, which involved spoliation sanctions against a couple accused of downloading its copyrighted adult movies via a BitTorrent client?  Here’s a similar case with the same plaintiff and similar spoliation claims, but with a somewhat different outcome (at least for now).

In Malibu Media, LLC v. Michael Harrison, Case No. 12-cv-1117 (S.D. Ind. June 8, 2015), Indiana District Judge William T. Lawrence denied the plaintiff’s motion for summary judgment, upholding the magistrate judge’s ruling which found an adverse inference instruction for destroying a hard drive with potentially responsive data on it to be not warranted, and ruled that “it will be for a jury to decide” if such a sanction is appropriate.

Case Background

The plaintiff alleged that the defendant installed a BitTorrent Client onto his computer and then went to a torrent site to upload and download its copyrighted Work, specifically, six adult films (or portions thereof).  As in the Tashiro case, the plaintiff used a German company to identify certain IP addresses that were being used to distribute the plaintiff’s copyrighted movies, and the defendant was eventually identified by Comcast as the subscriber assigned to this particular IP address.

After the lawsuit was filed, in January 2013, the defendant’s hard drive on his custom-built gaming computer crashed and he took it to an electronics recycling company, to have it “melted”. He then replaced the gaming computer’s hard drive. In addition to his gaming computer, the defendant also had another laptop. During discovery, that laptop and the new hard drive were examined by forensic experts; while the laptop revealed extensive BitTorrent use, it did not contain any of the plaintiff’s movies or files and the new hard drive did not reveal any evidence of BitTorrent use.  Nonetheless, because of the destroyed hard drive, the plaintiff filed a motion for sanctions for the Intentional Destruction of Material Evidence, as well as a motion for summary judgment.

In an evidentiary hearing in December 2014, the magistrate judge recommended that the motion for sanctions be denied, concluding that the defendant “did not destroy the hard drive in bad faith”, that “[h]ad [Harrison] truly wished to hid adverse information, the Court finds it unlikely that [Harrison] would have waited nearly five months to destroy such information” and noted that he found the defendant’s testimony to be credible.  The plaintiff filed an objection to that report and recommendation, arguing that “bad faith should be inferred from the undisputed evidence.”

Judge’s Ruling

Regarding both the summary judgment motion and the motion for sanctions, Judge Lawrence stated the following:

“The Court agrees with Magistrate Judge Dinsmore that default judgment was not warranted in this case. That said, Magistrate Judge Dinsmore found an adverse inference not to be warranted because he found Harrison’s testimony to be credible. While the Court does not necessarily disagree with Magistrate Judge Dinsmore—in that it is certainly possible a jury would find Harrison’s testimony to be credible—ultimately, the Court believes this is an issue best left for a jury to decide. Malibu Media has presented sufficient evidence to the contrary, and in light of the fact that Malibu Media’s motion for summary judgment was denied on the same grounds, the Court believes leaving the issue of spoliation to the jury to be the best approach. Accordingly, at trial the Court will instruct the jury that if it finds that Harrison destroyed the gaming computer’s hard drive in bad faith, it can assume that the evidence on the gaming computer’s hard drive would have been unfavorable to Harrison.”

So, what do you think?  Should this case have been handled the same way the Malibu Media, LLC v. Tashiro case was handled?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Expanded Sources of ESI Show That Crime Doesn’t Pay: eDiscovery Trends

I love the TV show Forensic Files – it amazes me how many different ways that law enforcement entities have to identify, catch and convict criminals.  With that in mind, here are a couple of stories that show how expanded sources of ESI can be used as evidence in criminal cases.

US court allows Google Earth image as evidence (by John Ribiero of IT News): An appeals court ruled on June 18 that Google Earth images, like photographs, can be used as evidence in a court.

The U.S. Court of Appeals for the Ninth Circuit ruled on an appeal by Paciano Lizarraga-Tirado, who claimed that he was on the Mexico side of the U.S.-Mexico border when he was arrested by U.S. agents years ago on charges of illegal reentry.  He insisted that the Border Patrol agents must have accidentally crossed the border before arresting him, according to court filings.

One of the arresting agents had, however, testified in court that she recorded the coordinates of Lizarraga-Tirado’s arrest using a handheld GPS device. To illustrate the location of those coordinates, the government introduced a Google Earth satellite image.  Lizarraga-Tirado claimed that both the satellite image on its own and the digitally added tack and coordinates were impermissible hearsay, invoking a rule that bars admission of out-of-court statements to prove the truth of the matters asserted.

However, since the relevant assertion wasn’t made by a person but by the Google Earth program, the Ninth Circuit said that it was joining other circuit courts that have held that machine statements aren’t hearsay. A machine could, however, malfunction, produce inconsistent results or have been tampered with. “But such concerns are addressed by the rules of authentication, not hearsay,” according to the court.  Since Lizarraga-Tirado only raised an objection on grounds of hearsay, but didn’t raise an authentication objection at trial or at appeal, his appeal was denied.

Woman staged ‘rape’ scene with knife, vodka, called 9-1-1, police say (by Brett Hambright of LancasterOnline):

Police officers acting on a 9-1-1 dispatch found overturned furniture, a knife and a bottle of vodka inside an East Lampeter Township home on March 10 where a woman claimed she was raped by a stranger at midnight.  However, further investigating – including a review of a Fitbit activity tracker – enabled the police to determine that the scene was staged and 43-year-old Jeannine Risley knowingly filed a false report.

The device, which monitors a person’s activity and sleep, showed Risley was awake and walking around at the time she claimed she was sleeping.  Also, snow on the ground revealed no bootprints or any signs of anyone walking outside the home, according to the affidavit. The hard-surface floor in the bedroom also showed no evidence of bootprints.

Risley is now headed to trial on three misdemeanor counts for prompting the emergency response and manhunt for an intruder that allegedly never was.

Thanks, as always, to Rob Robinson’s Complex Discovery site and Sharon Nelson’s Ride the Lightning site for the tips on the interesting ESI discovery stories.

So, what do you think?  Have you been involved in a case that turned on a unique source of ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. 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 Deposition of Expert to Evaluate Issues Resulting from Plaintiff’s Deletion of ESI: eDiscovery Case Law

In Procaps S.A. v. Patheon Inc., 12-24356-CIV-GOODMAN, 2014 U.S. Dist. (S.D. Fla. Apr. 24, 2015), Florida District Judge Jonathan Goodman ordered the deposition of a third-party computer forensic expert, who had previously examined the plaintiff’s computers, to be conducted in part by a Special Master that had been appointed to examine the eDiscovery and forensic issues in the case. The purpose of the ordered deposition was to help the Court decide the issues related to files deleted by the plaintiff and assist the defendant to decide whether or not to file a sanctions motion.

Case Background

Although the plaintiff filed suit in this antitrust case in December 2012, it did not implement a formal litigation hold until after February 27, 2014, when this Court ordered one to be implemented in response to the defendant’s motion. Beyond not implementing a formal hold, the plaintiff’s counsel acknowledged that its document and electronically stored information (“ESI”) search efforts were inadequate. Its US lawyers never traveled to Colombia (where the plaintiff is based) to meet with its information technology team (or other executives) to discuss how relevant or responsive ESI would be located, and it did not retain an ESI retrieval consultant to help implement a litigation hold or to search for relevant ESI and documents. In addition, some critical executives and employees conducted their own searches for ESI and documents without ever seeing the defendant’s document request or without receiving a list of search terms from its counsel.

The plaintiff ultimately agreed to a forensic analysis by an outside vendor specializing in ESI retrieval and the Court appointed a neutral computer forensic expert to analyze the plaintiff’s ESI and later appointed a Special Master to assist the Court with ESI issues. Completed in May 2014,the report, which was “thousands of pages long” from the forensic expert, showed that “nearly 200,000 emails, PDFs, and Microsoft Word, Excel, and PowerPoint files were apparently deleted” and “[i]t appears that approximately 5,700 of these files contain an ESI search term in their title, which indicates that they could have been subject to production in the forensic analysis if they had not been deleted.”

The defendant filed a motion to conduct the deposition of the neutral third-party expert to explain the report and the plaintiff filed an opposing response.

Judge’s Ruling

You’ve got to love an opinion that begins by quoting both eighteenth century English writer Samuel Johnson and the recently departed B.B. King. Judge Goodman began his analysis by referencing Federal Rule of Evidence 706, noting that it “governs court-appointed expert witnesses” and that “Subsection 706(b)(2) provides that such witnesses ‘may be deposed by any party.’” With regard to the plaintiff’s objection that such depositions are not very common, he stated that “regardless of whether depositions of court-appointed neutral experts on computer forensic issues are very common, used occasionally or are actually rare and atypical, they are certainly permissible. As noted, Federal Rule Evidence 706(b)(2) expressly provides for them. Moreover, there are published opinions discussing these types of depositions without critical comment. Perhaps more importantly, district courts have ‘broad discretion over the management of pre-trial activities, including discovery and scheduling.’”

Judge Goodman also rejected the plaintiff’s objection about the purported tardiness of the motion, noting that the forensic analysis took more than a year and was not completed until the first week of April 2015. He stated that “the deposition would undoubtedly be of great help to the Court. If I were to deny the motion, as Procaps urges, then I would be undermining my own ability to grapple with the myriad, thorny issues which will surely arise in the next several weeks or months.

Therefore, the Undersigned hopes to be able to ‘get by with a little help from my [ESI neutral expert] friends’ and is ‘gonna try [to comprehensively and correctly assess the to-be-submitted ESI issues] with a little help from my friends.’ Granting Patheon’s motion will enable the Undersigned to accomplish that goal; denying it would render that specific goal unattainable (and make the ESI spoliation/sanctions/trial evidence/bad faith/significance of missing evidence/prejudice evaluation more difficult).”

As a result, Judge Goodman ordered the deposition of the third-party computer forensic expert to be conducted in part by the Special Master and laid out the procedures for the deposition in his order.

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

This isn’t the first time we’ve covered this case, click here for a previous ruling we covered back in May 2014.

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.

How Blue Was My Valley? Not Blue Enough to Cite the Defendant for Discovery Violations: eDiscovery Case Law

In Malone v. Kantner Ingredients, 4:12CV3190 (D. Neb. Mar. 31, 2015), Nebraska Magistrate Judge Cheryl R. Zwart denied the plaintiffs’ motion to show cause, finding that the defendant “the plaintiffs have presented no evidence” that the defendant “destroyed, hid, or purposefully (or even recklessly) failed to produce responsive ESI” in the case.

Case Background

Over two years, the defendants had produced documents from various sources, including 140,000 electronic files located on a computer image of the data stored on the defendant’s file servers. Despite that, multiple conferences were held with the court regarding the parties’ discovery disputes and the plaintiffs filed five motions to compel additional documentation from the defendant.

In October of 2014, the plaintiffs claimed the defendants failed to produce all documents responsive to the plaintiffs’ discovery requests, particularly sent emails and invoices of transactions between Blue Valley Foods and the defendants. In an attempt to quell the plaintiffs’ ongoing distrust of the defendants’ discovery efforts, the defendants were ordered to locate their servers and determine if the server imaging performed by the defendants at the outset of the case was a full and complete imaging, as well as produce responsive invoices and sent mail from those servers.

In response to that order, the servers were received by defense counsel, who confirmed that the data image from the shared server data received by defense counsel at the outset of the case matched the data set and data amount on the servers. The servers were sent to the defendants’ forensic expert, who fully imaged them and provided a full copy of that imaging to the plaintiffs’ forensic expert. After receiving the server imaging, the plaintiffs’ forensic expert performed a word search of the data and located some documents containing the words “Blue Valley” that were not previously disclosed by the defendants in an electronic format. The plaintiffs presented evidence that some of those documents were responsive to production requests served by the plaintiffs, but they were not previously disclosed to the plaintiffs in an electronic format.

The plaintiffs moved for an order to show cause, alleging the defendants, their counsel, and counsel’s paralegal failed to comply with the order, “destroyed or tampered with evidence, and provided untruthful information to the court regarding the existence of discovery requested by the plaintiffs.”

Judge’s Opinion

Judge Zwart noted that, after receiving the actual servers, “the defendants did not repeat their search of the server data for responsive discovery…But the order required the defendants to determine if the server imaging performed by the defendants at the outset of the case was a full and complete imaging: It did not require the defendants to repeat their ESI review and production if the 2012 initial data imaging appeared to be full and complete.”

She continued: “By providing the full image of the servers to Plaintiffs’ expert, the defendants produced the emails, invoices, and associated metadata as required under the court’s order. While the plaintiffs incurred expense for forensic review of that data, the plaintiffs’ use of their own forensic expert was reasonable—and perhaps necessary—to bring some closure to the ongoing ESI discovery battle… The defendants allowed Plaintiffs to ‘see for themselves’ whether any additional documentation was on the Kantner servers. And the court is convinced this was the only means of convincing Plaintiffs that they had received everything. Had the parties discussed how to collect, review and produce ESI at the outset, perhaps the cost of two experts, and other discovery-related fees and costs, could have been avoided. But those discussions never occurred.”

With regard to the missed documents discovered by the plaintiff, Judge Zwart, referencing several sources for best practices for searching, indicated that “At most, the plaintiffs offered evidence of mistakes made during defense counsel’s 2012 manual review of the electronic files. Manual review is still considered by many as the ‘gold standard’ for electronic document review. But human error is common when attorneys are tasked with personally reviewing voluminous electronically stored information.” She also cited Reinsdorf v. Skechers (2013), which stated: “The discovery process relies upon the good faith and professional obligations of counsel to reasonably and diligently search for and produce responsive documents…However, while parties must impose a reasonable construction on discovery requests and conduct a reasonable search when responding to the requests, the Federal Rules do not demand perfection.”

Given that standard, Judge Zwart denied the plaintiffs’ motion to show cause.

This isn’t the first time we’ve covered rulings by Judge Zwart: click here, here, here and here to review previous rulings with eDiscovery impact that we’ve covered.

So, what do you think? Was that the right call or should the defendants have been held to a higher standard? Please share any comments you might have or if you’d like to know more about a particular topic.

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

Court Rules that Automatically Generated Read Receipt is Not Hearsay: eDiscovery Case Law

In Fox v. Leland Volunteer Fire/Rescue Department Inc., 7:12-CV-354-FL. (E.D.N.C. Mar. 10, 2015), North Carolina District Judge Louise W. Flanagan ruled that a Read Receipt automatically sent from the defendant’s email address to the plaintiff (when the defendant opened an email sent by the plaintiff) was not hearsay.

Case Background

In this wrongful termination case, the court was considering the defendants’ motion for summary judgment, as well as the defendants’ motion to strike certain exhibits attached to plaintiff’s brief in opposition to summary judgment for failure to comply with Federal Rule of Civil Procedure 56(c) & (e). One of the items that the defendants sought to exclude was a read receipt sent from defendant Grimes email address to plaintiff, triggered when an email plaintiff sent defendant Grimes was opened, arguing that the Read Receipt was “unauthenticated hearsay”.

Judge’s Opinion

Judge Flanagan made a swift ruling on this issue when she stated “Defendants’ argument fails. The Read Receipt is not hearsay.”

Explaining her ruling, Judge Flanagan started by questioning whether a Read Receipt email was even a statement, as follows: “As noted, hearsay is a declarant’s out of court statement offered to prove the truth of the matter asserted therein… As an initial matter, it is questionable whether the Read Receipt is a ‘statement’ at all. Federal Rule of Evidence 801(a) defines ‘statement,’ and specifically notes that a ‘statement’ must be ‘intended . . . as an assertion.’ Id. Here, it is questionable that the Read Receipt was intended to be assertive.”

Giving the benefit of the doubt that the Read Receipt qualifies as a statement under Rule 801(a), Judge Flanagan still ruled that “the read receipt is still admissible against both defendants where it is excluded from Rule 801…In particular, the email was generated by defendant Grimes, thus Rule 801(d)(2)(A) allows its admission against him. Rule 801(d)(2)(D), in addition, allows its admission against defendant Leland, because the statement came from defendant Grimes official email address, and defendant Grimes was required, as a function of his job, to investigate and respond to complaints of harassment.”

With regard to the defendants’ contentions that proper authentication under Federal Rule of Evidence 901(b)(1) & (4) of the Read Receipt was “impossible, because plaintiff failed to produce information about the email’s origin, including the mechanism by which it was generated” and that “plaintiff should have submitted a technical affidavit explaining how ‘read receipt’ emails are created, to ensure reliability”, Judge Flanagan stated that “the Read Receipt may be properly authenticated under Federal Rule of Evidence 901(b)(1) & (4).” Continuing, she noted that “the reliability of defendant Grimes’ email is not at issue, because the email is being admitted as a statement of a party opponent, which does not require the court to ensure reliability” and that “no technical affidavit is required to authenticate properly the Read Receipt… Here, defendant Grimes acknowledges receipt of plaintiff January 2, 2011, email referenced in the read receipt.” So, Judge Flanagan ruled that “the Read Receipt may properly be admitted.”

Ultimately, that proved to be a hollow victory for the plaintiff as Judge Flanagan granted the defendants’ motion to strike in part and also granted the defendants’ motion for summary judgment, closing the case.

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

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

Free Trojans with Your Document Production: eDiscovery Trends

By “trojans”, I mean “malware”, not the other type of “trojans”… 🙂

An Arkansas lawyer representing three Fort Smith police officers in a whistleblower case is seeking sanctions after his computer expert found malware on an external hard drive supplied in response to a discovery request, according to a story by the Northwest Arkansas Democrat Gazette.

According to the story, Attorney Matthew Campbell in North Little Rock has been representing three current and former Fort Smith police officers in the lawsuit since January 2014. He requested emails from the Fort Smith Police Department, and Sebastian County Circuit Judge James O. Cox ordered on May 9, 2014, that they be provided to Campbell as part of discovery in the case. The documents were produced in June 2014. It’s how they were produced that aroused Campbell’s suspicion.

Douglas Carson, the attorney representing Fort Smith and its Police Department, sent Campbell a computer hard drive with the production by Federal Express. According to the story, Campbell said the defendants normally had provided him with requested documents via email, the U.S. Postal Service or through a cloud-based Internet storage service.

So, Campbell decided to have his information technology expert, Geoff Mueller of Austin, Texas, check out the drive first. Guess what he found? Four “Trojans,” one of which was a duplicate.

A “trojan” or “trojan horse” appears to be a legitimate program which unleashes the malware when you are tricked into running it. They can be quite tricky as I reported a few years ago when it happened to me.

“One would have kept my Internet active even if I tried to turn it off, one would have stolen any passwords that I entered in, and the other would have allowed the installation of other malicious software,” Campbell said. “It’s not like these are my only clients, either. I’ve got all my client files in my computer. I don’t know what they were looking for, but just the fact that they would do it is pretty scary.”

In an affidavit filed with the motion Friday, Mueller stated: “Upon informing Mr. Campbell of the presence of these Trojans, he provided me with information that the Fort Smith Police Department claimed to be running a secure system with real-time virus and malware protection. In my experience, if the FSPD system is actually as described, these Trojans would not exist on the system.”

Mueller said the placement of the Trojans in a subfolder named “D:Bales Court Order,” and not in the root directory, “means the Trojans were not already on the external hard drive that was sent to Mr. Campbell and were more likely placed in that folder intentionally with the goal of taking command of Mr. Campbell’s computer while also stealing passwords to his account.”

In addition to the malware found on the drive, Campbell’s motion for sanctions alleges that entire email accounts were deleted, that emails which could have been recovered were purged from the system, and that emails which were previously provided in response to Freedom of Information Act (FOIA) requests had improper deletions. Campbell also states in the motion that the police department’s IT specialist attended a convention ten days after the court granted Campbell’s motion to compel evidence last May. According to Campbell, the expert took classes on secure data deletion, whistleblower investigation and monitoring employee activity, but did not take classes offered on eDiscovery and preservation of evidence.

Campbell is asking for a default judgment for his clients and that the defendants be held in criminal contempt of court, among other sanctions.

So, what do you think? Do you check data produced to you for the presence of malware? Please share any comments you might have or if you’d like to know more about a particular topic.

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

Simply Deleting an Email Doesn’t Mean It’s Gone, Even When It’s Hillary Clinton’s Emails: eDiscovery Trends

Early in the life of this blog, we published a blog post called eDiscovery 101: Simply Deleting a File Doesn’t Mean It’s Gone to try to help our readers understand how disk drives keep track of files and how “deleted” files often can still be recovered. Something tells me that basic forensic concept will become a big issue in the coming weeks and months regarding Hillary Clinton’s deleted emails.

As reported by Politico in Hillary’s emails: Deleted but not gone (by Joseph Marks and Rachael Bade), Clinton’s attorney David Kendall on Friday wrote Benghazi Committee Chairman Rep. Trey Gowdy (R-S.C.), declining the committee’s request for the personal server that she used for emails while she was Secretary of State (which we discussed previously here) to be turned over to an independent third party. The committee said it wants a third party to verify that all Benghazi-related emails were in fact turned over to the panel – especially after Clinton acknowledged deleting anything determined to be “personal” messages. Kendall called the request pointless, saying Clinton’s IT staff had confirmed to him the messages are gone for good (Gowdy, in a statement, said that Clinton “unilaterally decided to wipe her server clean and permanently delete all emails from her personal server”).

But, are the emails really gone? According to my colleague, Michael Heslop, Vice President of Computer Forensics at CloudNine, that depends on what they mean by “wiped”. “If they forensically wiped the server, then it’s likely not recoverable from there”, said Heslop. “But, the data might still be available via other sources, such as backups or an offline storage table (OST) file on the computer that was used for email.”

As an example, the Politico article references the case of former Internal Revenue Service official Lois Lerner, who came under scrutiny over charges that the IRS targeted tea party groups for heightened scrutiny, after the IRS said that a 2011 hard-drive crash rendered her emails irretrievable. The agency trashed the hard drive and said it had over-written back-up tapes, yet other recovered back-up tapes appears to have yielded the missing emails.

Not surprisingly, the conservative group Freedom Watch has filed a racketeering lawsuit against Clinton that accuses her of failing to produce documents under the Freedom of Information Act (FOIA). So, expect efforts to scrutinize the deletion of Clinton’s emails to intensify. And, that’s no April Fools joke.

So, what do you think? Have you ever had to recover deleted emails? Were you successful in doing so? Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

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

Case Background

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

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

Judge’s Opinion

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

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

So, what do you think? Was the defendants’ request overbroad? Or did they have a valid reason for the subpoena, given that the plaintiff failed to produce relevant ESI? Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

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

Case Summary

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

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

Judge’s Decision

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

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

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

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

So, what do you think? Should the defendant be prohibited from introducing posts that demonstrate the plaintiff’s employability? Please share any comments you might have or if you’d like to know more about a particular topic.

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