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Doug Austin

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.

Here’s a Webinar TODAY to Learn about Preserving and Analyzing Smartphone Data: eDiscovery Best Practices

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, involving the late musician Prince) where spoliation and sanctions associated with smartphone ESI were the key issue being addressed.  Let’s face it, discoverability of mobile devices has become a standard consideration in litigation these days.  But, how can you ensure you’re properly preserving the ESI on your smartphone and how can you get the most out of the data it contains?  Here’s a webinar TODAY that discusses that very topic!

And, here’s a spoiler alert!  It’s not even a CloudNine webinar.  This webinar is being hosted by ESI Analyst and Chorus Consulting.  Preservation & Analysis of Smartphone Data for Today’s Connected World will be presented at 2pm ET today (1pm CT, 11am PT).  Topics addressed include:

  • How to direct your client to avoid spoliation
  • Requirements to preserve and collect cell phone data
  • When to call a forensic expert
  • Best ways to analyze data from a cell phone:
    • Text/SMS/MMS including media
    • Chat applications
    • Call logs
    • Geolocation
  • Connecting those elements to create a timeline and tell the story

The webinar will be co-presented by:

  • John Myers of Chorus Consulting, who has been a partner with CloudNine for several years and has over 25 years of experience assisting clients in eDiscovery and forensic collection. John testified in this case having to do with the late Jimi Hendrix (which makes two dead rock stars mentioned in this post and ties my personal record, I think).
  • Trent Livingston of ESI Analyst, who has provided consulting and expert testimony regarding data, automation and analytics over a two-decade career and (with his team) has developed the data visualization and investigation technology platform called (oddly enough) ESI Analyst. Trent was one of the speakers at our NineForum TED Talk series at LegalTech this year.

You can register for the webinar here.  Even if you can’t make it today (but still want to check it out), register and you’ll receive a link to the webinar afterward.  If you want to learn some best practices for smartphone data preservation and analysis from two smart guys uniquely qualified to discuss those topics, check it out!

So, what do you think?  How often does your organization have to address mobile device discovery in litigation?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Having the Right Technology is Only One Piece of the Puzzle: eDiscovery Trends

We all get the eDiscovery technology is changing – in large part because the demands of eDiscovery are changing.  Amazingly enough though, it’s not just about the technology – as a recent article discusses, it’s as much about the training on how to use the technology as it is about the capabilities of the technology itself.

In Corporate Counsel (A Journey of Self E-Discovery, written by Frank Ready), the author speaks with several eDiscovery and technology experts regarding the needs and challenges of selecting eDiscovery providers and training on eDiscovery tools.  For example, Debbie Reynolds, data privacy officer at Eimer Stahl, describes the process of evaluating contracts with eDiscovery providers as a pendulum, a process by which every few years firms take a look at their ongoing budgets and expenditures to reevaluate whether or not they would be better served by bringing eDiscovery process in-house.

“About every three years you can kind of reconsider, ‘Are we doing the right thing? Are we looking at the right software? Do we have the right staffing?’” Reynolds says.

Investing in an array of high-powered eDiscovery tech and software is all well and good, but putting it into the hands of an untrained staff is still akin to tossing a set of Porsche keys to someone who slept through the entirety of drivers ed. As David Hasman, litigation support manager at Bricker & Eckler, says, “The reality of it is that if you don’t have talent to drive that technology, that technology is useless.”

“Really, the biggest spend from a client’s perspective when you’re facing litigation is typically the discovery. … You as a lawyer better be able to talk to your client and educate them on the process, why it’s important and the costs associated with it,” explains Joseph Tate, director of eDiscovery and practice advisory services at Cozen O’Connor.

To be sure, corporate legal departments aren’t immune to the whims of foot-dragging folks either. George Socha, co-founder of EDRM and a managing director in BDO’s forensic technology services practice, pointed out that some companies have never had a reason to focus on eDiscovery. Still, a sudden spike in litigation can force their hand.

But necessity does not always translate to enthusiasm, at least in the eyes of some of the companies that Socha has spoken to about starting down the eDiscovery path. “Their response is, ‘You’ve got to be kidding? This is what’s going on? This is insane,’” Socha says.

But, as we have all heard before, insanity is doing the same thing over and over again, hoping for a different result.  As Tom O’Connor and I discussed in our April webcast (Discovery Isn’t Just for Litigation Anymore), growing data privacy concerns with the General Data Privacy Regulation (GDPR) and California Consumer Privacy Act (CCPA) and increase in harassment claims with #MeToo and rising corporate malfeasance concerns have led to a lot of potential compliance and investigations needs with regard to discovery that organizations have today whether or not they ever lead to litigation.  In short, most organizations are likely to have some need today regarding eDiscovery, even if they never have any litigation.  As a result, more organizations than ever will not only have a need for eDiscovery technology, they will also have a need for training: training to not only understand how to get the most out of the technology, but also training on best practices regarding eDiscovery in general.  This means an increased emphasis on certifications like the Certified E-Discovery Specialist (CEDS) Certification from ACEDS, as well as trainings and certifications on the eDiscovery technology itself.

That’s one of the many things great about our industry – there’s always a lot of new things to learn!

So, what do you think?  How does your organization address technology and best practice training needs?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Court 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.

Production is the “Ringo” of the eDiscovery Phases: eDiscovery Throwback Thursdays

Here’s our latest blog post in our Throwback Thursdays series where we are revisiting some of the eDiscovery best practice posts we have covered over the years and discuss whether any of those recommended best practices have changed since we originally covered them.

This post was originally published on December 1, 2011 – when eDiscovery Daily was a little more than a year old.  Back then, we had only 65 posts related to case law, now, we’re close to nine years old and have 689 posts related to case law (covering over 530 unique cases).  Case law has evolved over the years, especially since the 2015 Federal Rules changes impacted rulings on sanctions and proportionality, among other things.  And, we have seen more cases related to disputes over production format, as some (but not enough) requesting parties are realizing that requesting native productions gives them more metadata about the produced ESI (while also making it more “tamper-proof”).

We’ve noted that 80% of the costs associated with eDiscovery are in the Review phase and that volume of data and sources from which to retrieve it (including social media and “cloud” repositories) are growing exponentially.  Most of the “press” associated with eDiscovery ranges from the “left side of the EDRM model” (i.e., Information Management, Identification, Preservation, Collection) through the stages to prepare materials for production (i.e., Processing, Review and Analysis).

All of those phases lead to one inevitable stage in eDiscovery: Production.  Yet, few people talk about the actual production step.  If Preservation, Collection and Review are the “John”, “Paul” and “George” of the eDiscovery process, the Production phase is still the “Ringo” of eDiscovery phases, not talked about enough – even though it’s arguably the most crucial step of all.

It’s the final crucial step in the process, and if it’s not handled correctly, all of the due diligence spent in the earlier phases could mean nothing.  So, it’s important to plan for production up front and to apply a number of quality control (QC) checks to the actual production set to ensure that the production process goes as smooth as possible.

Planning for Production Up Front

When discussing the production requirements with opposing counsel, it’s important to ensure that those requirements make sense, not only from a legal standpoint, but a technical standpoint as well.  Involve support and IT personnel in the process of deciding those parameters as they will be the people who have to meet them.  Issues to be addressed include, but not limited to:

  • Format of production (e.g., paper, images or native files);
  • Organization of files (e.g., organized by custodian, legal issue, etc.);
  • Numbering scheme (e.g., Bates labels for images, sequential file names for native files);
  • Handling of confidential and privileged documents, including log requirements and stamps to be applied;
  • Handling of redactions;
  • Format and content of production log;
  • Production media (e.g., CD, DVD, portable hard drive, FTP, etc.).

I was involved in a case years ago where opposing counsel was requesting an unusual production format where the names of the files would be the subject line of the emails being produced (for example, “Re: Completed Contract, dated 12/01/2011”).  Two issues with that approach: 1) The proposed format only addressed emails, and 2) Windows file names don’t support certain characters, such as colons (:) or slashes (/).  I provided that feedback to the attorneys so that they could address with opposing counsel and hopefully agree on a revised format that made more sense.  So, let the tech folks confirm the feasibility of the production parameters.

The workflow throughout the eDiscovery process should also keep in mind the end goal of meeting the agreed upon production requirements.  So, you can adversely impact production long before you get to the production step.

Next week, we will talk about preparing the production set and performing QC checks to ensure that the ESI being produced to the requesting party is complete and accurate.

So, what do you think?  Have you had issues with production planning in your cases?  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.