Don’t Be Late and Ineffective with Litigation Holds

The City of New York, 50 unnamed NYPD officers, and the former NYPD Commissioner are involved in a civil rights lawsuit over allegedly issuing summonses without probable cause, violating the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution, if true. The City was found to be grossly negligent in issuing and executing its litigation hold for the preservation of email and text messages. Stinson v. City of New York (S.D.N.Y. Jan. 2, 2016) 2016 U.S. Dist. LEXIS 868, at *1.

The City did not issue a litigation hold until three years AFTER the complaint had been filed. The Court stated that litigation hold was not effectively communicated and the officers listed in the City’s initial disclosures did not acknowledge receiving the hold notice. Stinson, at *3-4.

The NYPD had a document destruction policy of three years for bureau chief memos and four years for monthly performance reports and summonses. Stinson, at *4. The NYPD “did not have a specific policy with regards to the destruction of email communications, it did impose a hard size limit on officers’ inboxes, and that when officers hit that limit, ‘they delete.’” Stinson, at *5. The NYPD document retention and destruction policy did state, “unless specific steps were taken, relevant NYPD documents would be destroyed.” Id.

The Court further explained that 1) the City made no effort to preserve text messages between police officers; and 2) the NYPD had no policy on preserving text messages. Stinson, at *6.

The City of New York produced only a few documents from key players. Id. Moreover, no emails were produced from the former Commissioner, the former Chief of the department, and three other key custodians. In all, the Court noted a total of fewer than 25 emails produced from key players. Stinson, at *7. The City took the position that the “Police Department on the whole did not operate via email.” Stinson, at *8. This assertion was contradicted by emails the Plaintiff acquired from third parties. Id.

The Court found that the City’s litigation hold was both late and ineffective. Moreover, the fact relevant emails were found, demonstrated that relevant emails were also deleted. Id.

Judge Robert Sweet granted the Plaintiff’s motion for sanctions. The Court applied the elements from Chin v. Port Authority in proving sanctions that:

1) That the party having control over the evidence had an obligation to preserve it at the time it was destroyed; 

2) That the records were destroyed with a culpable state of mind; and

3) That the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.

Stinson, at *8.

The Court found that the duty to preserve was the date of an earlier lawsuit involving quota-related allegations that was “strikingly similar” to the instant case, which was January 31, 2008, opposed to the date of the current lawsuit, filed on May 25, 2010. Stinson, at *10-11, referencing Floyd v. City of New York, 283 F.R.D. 153, 164-66 (S.D.N.Y. 2012).

The parties further battled over the scope of the duty to preserve. While it is unreasonable for any organization to have an indefinite litigation hold, the City could not argue there was any justification in failing to enact a litigation hold for three years. Stinson, at *12. The City further argued that since the Plaintiff’s had overly broad discovery requests, they should not be sanctioned for failing to preserve relevant ESI. Id. The Court rejected this argument, stating:

…[T]he reasonableness or unreasonableness of one party’s demands does not determine the scope of the other party’s obligation to preserve documents. The Plaintiffs’ putative overbroad demands do not excuse the City’s failure to issue a litigation hold, to properly supervise its implementation, or to suspend document retention policies that would foreseeably lead to the spoliation of evidence.

///

The Plaintiffs’ putative overbroad demands do not excuse the City’s failure to issue a litigation hold, to properly supervise its implementation, or to suspend document retention policies that would foreseeably lead to the spoliation of evidence.

Stinson, at *12-13.

Life lesson: Just because the Plaintiff has overly broad scope for discovery requests, does not justify the lack of a litigation hold.

The Court held that the City’s conduct warranted a finding of gross negligence in its failure to issue a litigation hold. Stinson, at *16. The Court explained that finding gross negligence is “more art than science” due to the lack of a clear standard:

Neither negligence or gross negligence has been clearly defined in the context of discovery misconduct, such as spoliation. These terms simply describe a continuum. Conduct is either acceptable or unacceptable. Once it is unacceptable the only question is how bad is the conduct. That said, it is well established that negligence involves unreasonable conduct in that it creates a risk of harm to others.

Stinson, at *16 [Citations omitted].

The Court held the following factors amounted to gross negligence: 1) failure to issue a litigation hold; 2) failure to implement the hold after it was issued with poor communications and the destruction of evidence; and 3) failure to circulate the hold and ensure compliance. Stinson, at *17-18.

Judge Sweet drove home the point the NYPD knew document destruction was foreseeable from their retention policy:

The NYPD cannot credibly argue that, despite setting guidelines for document destruction and providing an industrial shredding truck for that purpose, it did not know or intend that documents would be destroyed. Similarly, Lieutenant Scott’s Rule 30(b)(6) testimony amounts to an admission that the Department knew that officers’ email inboxes would hit their space limits – and that those officers would delete potentially relevant ESI when they did. Although the paucity of relevant emails produced from the inboxes of key decision makers does not establish that ESI was deleted, it is consistent with such spoliation and with Lieutenant Scott’s acknowledgement that deletion of emails was a foreseeable consequence of the NYPD’s storage policy.

Stinson, at *19.

The Court further held that the evidence lost was relevant to the Plaintiff’s claims from the handful of emails that were produced from a third party and other discovery. Stinson, at *20-21.

The Court had to craft a proportional adverse inference instruction based on the City’s conduct. As one would expect, the Plaintiff sought nuclear sanctions that would make them prevail on hotly contested disputes in the case. Stinson, at *22. As the Court explained, the Plaintiff was entitled to “an inference that helpful evidence may have been lost, not relief from their obligation to prove their case.” Id.

The Court sanctioned the Defendants with a “permissive inference” instead of a “mandatory adverse inference.” Id. Judge Sweet explained:

A permissive inference will ensure that the City faces consequences for its failure to take its preservation obligations seriously, but will not result in an unwarranted windfall for the Plaintiffs. The jury will be instructed that the absence of documentary evidence does not in this case establish the absence of a summons quota policy.

Stinson, at *23.

Bow Tie Thoughts

Large organizations often get trapped in the “fog of war” with litigation holds. Failed communications, not monitoring for compliance, or not issuing a hold can result in catastrophic results.

This case did not apply the new Federal Rule of Civil Procedure Rule 37(e), because the motion was submitted prior to the December 1, 2015, the day the Rule went into effect. Stinson, at *14-15, footnote 5. The Court held it would not be “just and practicable” to retroactively apply the Rule. Id. The new Rule 37(e) states:

Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1)  upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2)  only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A)  presume that the lost information was unfavorable to the party;

(B)  instruct the jury that it may or must presume the information was unfavorable to the party; or

(C)  dismiss the action or enter a default judgment.

USCS Fed Rules Civ Proc R 37(e).

It will be very interesting to see the first case that applies Rule 37(e). Time will tell how quickly that day comes. While the factual analysis will likely remain the same, the sanctions analysis should be less art and more science.

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How eDiscovery Experts Can Help Fight the Blues

Magistrate Judge Jonathon Goodman knows the value of an expert deposition in complex litigation and B.B. King.

Everyday I Have the Blues

Here is the basic dispute in Procaps S.A. v. Patheon Inc.: The Plaintiff, based in Columbia, did not put a litigation hold in place until ordered by the Court. There are issues with inadequate searches and the Plaintiff’s attorney did not travel to Columbia to meet with the Plaintiff’s IT team. Custodians conducted searches themselves for collection without reviewing the discovery requests. The Plaintiff is accused of spoliation of electronically stored information. A spoliation motion is expected. Procaps S.A. v. Patheon Inc., 2015 U.S. Dist. LEXIS 53997, 2-4 (S.D. Fla. Apr. 24, 2015).

A Special Master was appointed to examine the eDiscovery and forensic issues in the case. Additionally, a neutral third-party computer forensic expert examined the Plaintiff’s computers. A Report was prepared that showed “that nearly 200,000 emails, PDFs, and Microsoft Word, Excel, and PowerPoint files were apparently deleted. It 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. Procaps, at *7.

The Report also stated duplicate files could exist and that “there is no evidence that any ESI or other documents have been deleted or purged with no chance of being recovered.” Procaps, at *7-8.

To Know You is to Love You

The Defendants sought to conduct the deposition of the neutral third-party expert to explain the report. After a protracted discussion of whether the Court could order such a deposition procedurally, the Court stated Federal Rule Evidence 706(b)(2) expressly provided for such depositions. Procaps, at *15.

The Court explained that deposing the expert would benefit the parties and the Court in understanding the ESI issues in the case. As the Judged explained, “the Undersigned has no hesitation about disclosing my appreciation for help on complex ESI issues from court-appointed, neutral forensic experts (and from special masters with considerable experience in E-discovery).” Procaps, at *14-15.

The Court ordered the deposition of the third-party computer forensic expert to be conducted in part by the Special Master. Procaps, at *2-3. The goal of the deposition was to assist the Court in deciding the issues from the deleted files and assist the Defendant in determining whether or not to file a sanctions motion. Id.

Bow Tie Thoughts

First things first, I hope B.B. King is comfortable.

The “e” in “eDiscovery” is not because it is “easy.” Determining whether ESI was lost, whether it exists in another location, whether it is not reasonably accessible, requires expert analysis. This expert analysis needs to be communicated to the Court, usually in the form of a Report or Affidavit, but sometimes in a deposition.

The battles in this case focused on procedural issues with having the expert deposition. The Court rightly allowed the deposition and was wise to leverage the Special Master, who is very knowledgeable in eDiscovery, to conduct the deposition. Many cases have complex issues with how to collect data and strategies for reviewing ESI. Employing an expert is a smart way to focus on the merits and not get lost in eDiscovery issues.

 

Don’t Argue “Human Error” For Not Searching ESI

It is dangerous for lawyers to argue information was not searched for years because of “human error.” That is right up there with saying, “Your Honor, we goofed. Are we cool?”

As we learned from Judge Kevin Fox, no, we are not cool.

The case involved claims for wrongful termination and fighting over audio recordings and emails for over five years. Novick v. AXA Network, LLC,2014 U.S. Dist. LEXIS 150004 (S.D.N.Y.Oct. 22, 2014).

After protracted discovery battles, the Defendants produced audio recordings that had an eight-week recording gap. Novick, at *16-17.

The Court found that 1) the Defendants created audio recordings in that time period; 2) those recordings were not produced because they were missing; and 3) there was no explanation on how these recordings went missing. Novick, at *17.

As such, the Court held that the Defendants spoliated relevant evidence. Id.

Judge Fox further found:

The defendants’ repeated failure to search for properly, locate and produce audio recordings to the plaintiff, as noted in the October 3, 2013 order, as well as their inability to account for the audio recordings’ disappearance, suggests nothing other than deliberate conduct and a culpable state of mind. The Court finds that the defendants acted in bad faith because, after representing to the assigned district judge, during the June 27, 2012 conference, that the audio recordings exist, but “are not searchable,” the defendants represented to the plaintiff, on November 20, 2012, that they “have investigated and have not located any audio recordings of the trading desk (where the individuals identified by plaintiff were located) from 2006.” Thereafter, it was not until after the plaintiff made a motion for sanctions that the defendants searched for and located the existing audio recordings, and, not until after the Court ordered their production on October 3, 2013, that the defendants admitted that the audio recordings, covering the period of time critical to the plaintiff’s claims, were missing. The defendants’ delay in properly searching for, locating and producing relevant audio recordings and their conflicting representations to the court and the plaintiff about the existence of audio recordings prejudiced the plaintiff by: (i) preventing him from discovering facts material to the adjudication of his claims; (ii) causing him to incur unnecessary costs making his motion for sanctions and the instant motion; and (iii) prolonging the litigation.

Novick, at *17-19, emphases added.

The Court turned the dial up to 11 finding bad faith conduct because of the misconduct regarding the audio files, the search for missing email messages, and the failure to search an archive due to “human error” without any further explanation. Novick, at *19.

The Court sanctioned the Defendant both with an adverse inference jury instruction and monetary sanctions. Novick, at *22-23. Striking the Defendant’s answer would have gone too far in the Court’s view.

Adverse inference instructions were justified because:

(1) The defendants had an obligation to preserve the audio recordings at the time they vanished;

(2) The audio recordings were spoliated with a culpable state of mind, namely in bad faith; and

(3) The audio recordings were relevant to the plaintiff’s claims such that a reasonable trier of fact could find that they would support his claims.

Novick, at *22.

The Court explained that the sanctioned would deter “spoliation, place the risk of an erroneous judgment on the defendants and restore the plaintiff to the position he would have been in absent the defendants’ wrongful spoliation of the audio recordings.” Novick, at *22-23.

Bow Tie Thoughts

The Duty to Preserve is not something to ignore. Nor is it acceptable to fail to search hard drives for responsive information. Furthermore, if there are discovery mistakes, a party must be able to explain what happened beyond “human error.”

Judges want to know specifics when there is a discovery dispute. As such, parties should document steps to preserve electronically stored information; including how ESI was searched; the technologies used for such searches; and were the collected information is stored. The failure to document with a detailed chain of custody and search report can end badly when electronically stored information goes missing.

Spoliation, Texas Style

The Texas Supreme Court has clarified the standards for spoliation (in Texas). The rule is that Texas has a two-step process: (1) the Trial Court must determine, as a question of law, whether a party spoliated evidence, and (2) if spoliation occurred, the Court must assess an appropriate remedy. Brookshire Bros., Ltd. v. Aldridge, 2014 Tex. LEXIS 562, 3-4 (Tex. July 3, 2014).

This Allemande Left and Do So Do requires a Trial Court to find that (1) the spoliating party had a duty to reasonably preserve evidence, and (2) the party intentionally or negligently breached that duty by failing to do so. Brookshire Bros., Ltd., at *3. This is to be done outside the presence of the jury, so the accused party is not swung around before the jurors, causing any prejudicial effect by the presentation of evidence that is unrelated to the facts underlying the lawsuit. Id. (and memories of 7th grade square dancing). 

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The jury is to only hear evidence of spoliation that is related to the lawsuit. If there is spoliation, the then Trial Court can craft a proportionate remedy based upon the level of culpability of the spoliating party and the degree of prejudice, if any, suffered by the nonspoliating party. Brookshire Bros., Ltd., at *4.

The facts of the Texas case involved video footage at a grocery store of a slip and fall. The Plaintiff slipped at the store and reported the incident the following day after going to the emergency room. The store saved video of the fall, starting from before the Plaintiff entered and left the premises. The video lasted 8 minutes. However, the rest of the video was deleted per the company’s data destruction policy after 30 days. Brookshire Bros., Ltd.  at *6-7.

The Texas Supreme Court held that a party must intentionally spoliate evidence in order for a spoliation instruction to constitute an appropriate remedy. Brookshire Bros., Ltd.  at *31.

The Court held that the deletion of the video for the entire day of the incident did not justify the jury spoliation jury instruction. Furthermore, the video showing the actual fall was presented to the jury. Brookshire Bros., Ltd.  at *46-47. The Court found that the failure to preserve additional video footage did not irreparably deprive Plaintiff of any meaningful ability to present his claim. Brookshire Bros., Ltd.  at *47-48. The issuing of the spoilation jury instruction was an abuse of the Trial Court’s discretion. Brookshire Bros., Ltd.  at *48.

Bow Tie Thoughts

The preservation of electronic evidence is a challenge for many attorneys. Litigants cannot preserve “everything” in a company at the first sign of litigation. The trick is preserving what is relevant. This becomes a question on the scope of discovery.

Could the Defendants in this case have copied a half hour before the incident and a half hour after? Sure. Some companies might do that. Others might not. Whether that is reasonable would turn on the facts of the case on whether that data needed to be preserved.

Texas lawyers know a few things about spoliation. First, it is based in evidence, opposed to a cause of action. Second, Judges should not let the facts over data preservation be presented to the jury to avoid any prejudicial effect. If there is an actual issue of spoliation, then the Court must determine the remedy before going to the jury.

Tortious Spoliation of Metadata Claim Defeats Motion to Dismiss

A Plaintiff brought a motion for tortious spoliation of evidence for the alleged destruction of a native file report after the duty to preserve triggered.

The Defendants produced the written report, but the native file and its metadata were gone. Raines v. College Now Greater Cleveland, Inc., 2014 U.S. Dist. LEXIS 75373, 10-11 (N.D. Ohio June 3, 2014).

The Defendants brought a motion to dismiss and argued the Plaintiff could not bring a claim for spoliation of evidence, because the Plaintiff could not show her case was “disrupted.” Raines, at *10.

The elements for a spoliation of evidence are as follows:

(1) There was pending or probable litigation involving the plaintiff;

(2) knowledge on the part of defendant that litigation exists or is probable;

(3) willful destruction of evidence by defendant designed to disrupt the plaintiff’s case; 

(4) disruption of the plaintiff’s case; and

(5) damages proximately caused by the defendant’s acts.

Raines, at *10.

The Court held the Plaintiff sufficiently alleged a claim to survive a motion to dismiss, even though she was not clear on damages. The Court stated the Plaintiff only had the physical document, but not the metadata, which the Plaintiff claimed had independent value. Raines, at *11.

The Court denied the Defense motion and stated, “We will later sort through whether any loss of metadata has caused damage.” Id. 

Bow Tie Thoughts

Let’s be frank: You want the metadata. Metadata can contain who created the document,  edited it last, who printed it, and track changes. Stating metadata has “independent value” is putting it mildly when given only a physical copy of the document.

The “independent value” of metadata should be explained to a Judge in an affidavit by an expert. There are different types of metadata, with substantive and embedded being more likely to have relevant information than system metadata. I cannot help but think system metadata would be needed in a forensic examination to determine who destroyed a file, but I am not a forensic expert.

Knowing who created the document, or edited the file, or who made changes, is required information to identify key players in a lawsuit. Moreover, these facts are the basis for deposition questions on “why did you change this section of the report?”

Does metadata have independent value? You bet. Should a lawyer argue that on their own to a judge? No. Retain an expert to explain the technical issues on why the information is important and how not having it negatively impacts analysis to determine the truth in the lawsuit. Additionally, explain what must be done to determine how the data was destroyed.

 

How to Get A Judge to Say “Stern Measures Are Called For”

How do you know there is a duty to preserve?

When two managing officers involved in the termination of an employee are repeatedly asked by an attorney for their electronic calendars, including a letter threatening an EEOC complaint if there was not an amicable resolution, and then followed by formal discovery requests.

How do you get sanctions?

When after repeated statements that the Defendants did not have electronic calendars, one of the managing officers states in deposition that he kept a daily electronic calendar and routinely deleted the entries after the date has passed. Making matters more complicated, the witness admitted “he was told a week before his deposition to retain his calendars but he nonetheless continued his practice of deleting” his electronic calendars. Kirgan v. Fca Llc, 2013 U.S. Dist. LEXIS 51747, at *1-2 (C.D. Ill. Apr. 10, 2013).

Overview of Sanctions

A party must enact a litigation when it reasonably anticipates litigation, which generally requires the suspension of its document destruction policy.  Kirgan, at *3.

Courts analyze three factors in determining sanctions for the failure to preserve evidence:

(1) A breach of the duty to preserve or produce documents;

(2) The level of culpability for the breach; and

3) The prejudice that results from the breach.

Kirgan, at *3, citing Danis v USN Communications Inc., 2000 WL 1694325, at *31 (NDIL).

Case law states that sanctions must be proportionate to the offending conduct. Kirgan, at *3. A party also had to know or had reason to know that litigation was forthcoming. Kirgan, at *3 citing Morton v Motel 6 Operating L.P., 534 F3d 672, 681 (7th Cir 2008). Sanctions can be imposed on a finding of bad faith, willfulness, or fault. Kirgan, at *3 citing Brandt v Vulcan, Inc., 30 F3d 752, 756 (7th Cir 1994).

The Court’s Findings 

The Court held that the Defendants breached their duty to preserve the daily calendars and that the Plaintiff had been prejudiced by the destruction of the electronic evidence. Moreover, the Court found that the Defendants’ conduct was misleading and intentional. Kirgan, at *5.

The Court stated the following on determining sanctions:

I do not believe that the sanction of default is warranted. I do, however, believe that stern measures are called for. The Defendant’s direct and vicarious conduct was willful and intentional, and it cannot be condoned. 

Kirgan, at *7.

The Court noted that the destruction of the calendars was the only reported instance of misconduct.

However, that misconduct included untruthful statements that the calendars did not exist, with one of the parties deleting the ESI. Kirgan, at *6.

This conduct created a “clear impression that [the officer] had deliberately decided to thwart Plaintiff’s efforts to obtain them.” Id.

Based on the above, the Court entered the following sanctions order:

 

1. The jury is to be given a spoliation instruction, which permits the jury to draw a negative inference from its failure to preserve and its destruction of relevant documents.

2. Defendant may not use — at summary judgment or at trial — any evidence or argument that may have been contained in Borsdorf’s destroyed calendars, unless that evidence or argument is corroborated by other documentary evidence or by testimony of witnesses independent of the Defendant.

3. Defendant shall pay attorney’s fees to the Plaintiff for the fees his counsel incurred in preparing this motion. That amount shall be doubled, in a rough effort to compensate Plaintiff for the efforts that were made in her counsel’s attempts to obtain the calendars.

Kirgan, at *7.

Bow Tie Thoughts

Judges do not like lies. Attorneys have a duty of candor to the Court and witnesses take an oath to tell the truth. Judges get upset when anything less than the truth is told.

This is the first time I have seen a Court double an attorneys fee award as part of a sanction for the destruction of evidence (I am sure it has happened before). However, it is noteworthy, because the Court did it “in a rough effort to compensate Plaintiff for the efforts that were made in her counsel’s attempts to obtain the calendars.” 

Complying with the duty to preserve is rightly a hot topic in litigation. Attorneys must conduct detailed interviews with their clients to determine what technology is used in the ordinary course of business. Does the client text? Is there data outside the firewall in a “cloud,” such as a Google Calendar?

Attorneys must develop a preservation strategy after determining the relevant sources of information. Telling a custodian to “stop deleting” is a good first step, but the relevant data has to be collected in a defensible manner. This could range from content information management systems “locking down” the custodians’ communications, which are then exported for analysis and review. Other options include collecting data directly from the computers with computer forensic experts. Regardless of the strategy used, it is advisable to not allow custodians to self-collect their own data.

The Find a Litigation Hold App on An iPhone

In a dispute involving claims of monopolistic violations regarding booking A-list DJ’s at nightclubs, the Defendants did not take any steps to preserve or review text messages on an iPhone for relevance that was lost.  Christou v. Beatport, LLC, 2013 U.S. Dist. LEXIS 9034, 36-39 (D. Colo. Jan. 23, 2013).

While the ensuing motion practice did not have the fist-pumping energy of an A-list nightclub, the issue of spoliation sanctions is worthy of a late night freestyle eDiscovery rap battle.

Cueing Up a Litigation Hold

The Plaintiffs served a litigation hold letter on the Defendants at or about the same time as the beginning of the lawsuit in December 2010, which identified text messages as ESI to preserve. Christou, at *36-37.

The Plaintiffs sought an adverse jury instruction for the failed preservation of text messages, because 1) the Defendants took no steps to preserve the text messages on the Defendant’s iPhone; 2) Defendants did not disclose any text messages in their May 2011 discovery responses; and 3) The Defendant claimed that he lost his iPhone in August 2011, thus also loosing and any text messages saved on it. Christou, at *37.

Spinning Relevance and Review

The Defendants argued whether any relevant text messages were lost pertaining to the litigation was “sheer speculation,” because the Defendant did not use text messages to book DJ’s. Id.

The Defendants also argued that they “responded fully” to the May 19, 2011 discovery, thus “showing” that there were no responsive text messages. Id.

The Court stated that the Defendant’s claim he “did not use texting to book DJ’s is hardly proof that his text messages did not contain relevant evidence.” Id.

The Court turned up the volume on the fact that just because the Defendants stated that they “found no responsive text messages,” did not address whether defense counsel reviewed the Defendant’s text messages and determined that the text messages “contained nothing of relevance.” Christou, at *37-38.

Setting the Master Level on Sanctions 

The Court explained that spoliation sanctions are proper when “(1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.” Christou, at *38, citing Turner v. Public Serv. Co. of Colorado, 563 F.3d 1136, 1149 (10th Cir. 2009) (quoting Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007)).

The Court found the Defendants had a duty to preserve the text messages, which they did not do. Christou, at *38.

Moreover, the Court held, “Those text messages, few as they might have been, should have been preserved and either provided to the plaintiffs or potentially made the subject of further proceedings before the Court.” Id. 

The Court had no reason to believe the phone was not lost on accident or the failure to preserve was just negligent. Christou, at *38-39.

However, the Court had to determine an appropriate sanction. The Court explained:

A commercial party represented by experienced and highly sophisticated counsel cannot disregard the duty to preserve potentially relevant documents when a case like this is filed. However, an adverse jury instruction is too harsh and is unwarranted as a sanction for the negligent “spoliation” of evidence in the circumstances presented here.

Christou, at *39.

The Court mixed the following sanction: The Plaintiffs could introduce the litigation hold letter and that the Defendants failed to preserve the text messages. Id.  Further, the Plaintiffs could “argue whatever inference they hope the jury will draw.” Id. Additionally, the Defendants could offer admissible evidence to explain the loss and argue that no “adverse inference should be drawn.” Id. 

Bow Tie Thoughts

The duty to preserve and mobile devices can potentially give lawyers serious stress. Attorneys should discuss with clients how they use technology, how they communicate and involve consultants in ensuring the preservation of relevant ESI. Additionally, if a litigation hold letter specifies a type of data, it is advisable to conduct a reasonable investigation whether any relevant information exists on the identified media.

Litigation hold letters can be multiple page lists including every possible form of ESI known to man. While no one wants data to go missing, or to not include a possible data source, it is always a good plan for parties to meet and confer over possible data sources to narrow what data needs to be preserved and collected.

Finally, it is important to remember data can exist in multiple locations. While a smartphone such as an iPhone might be lost, the text messages might be backed-up on a computer when the iPhone was synced. It is also worth investigating whether the text messages were iMessages that possibly could be backed-up in iCloud.

Audio Recording Sanction Blues

Many eDiscovery attorneys associate Chicago with 1) the Blues Brothers and 2) Magistrate Judge Nan Nolan.

Judge Nolan granted in part and denied in part a motion to compel in an employment dispute.

The Judge found the Defendant had a duty to preserve audio recordings of calls that had been destroyed under the company’s retention policy.

The Court further held that the destruction of an audio recording to be grossly negligent or supported a finding of fault.

As such, the Defendants were to be sanctioned with a presumption at the summary judgment stage as to whether plaintiff hung up on a customer, and if the case went to trial, the court should instruct the jury with a “spoliation charge” to be determined by the District Court.   Banks v. Enova Fin., 2012 U.S. Dist. LEXIS 170000, 1-2 (N.D. Ill. Nov. 30, 2012).

The Defendants quickly found an expressway to the District Court, arguing the Magistrate Judge’s order was clearly erroneous. Id.

I Can’t Turn You Loose

The Defendant argued the Magistrate Judge did not have the authority to impose sanctions under a court’s inherent power without bad faith in the Seventh Circuit. There was no citation to any case law for this position. Banks, at *4-5.

While adverse inference instructions do require a showing of bad faith, the Court did not find any bad faith related to the destruction of the tapes. Banks, at *5. However, the District Court noted that the Magistrate Judge did not issue an adverse inference instruction and it was within the Court’s discretion to craft sanctions proportional to a case. Banks, at *6.

The Defendant also challenged the Magistrate Judge’s finding the Defendant had a duty to preserve.  The Court found the Defendants had a duty to preserve the audio recordings based on 1) the termination of the employee based on the phone calls; 2) the Plaintiff’s meeting with his supervisor over his termination; 3) the unemployment claim litigation; and 4) the EEOC charge. Banks, at *6-7.

The Seventh Circuit’s case law states that the duty to preserve arises when a party “’knew, or should have known, that litigation was imminent.” Banks, at *7, citing Viramontes v. United States Bancorp, 2011 U.S. Dist. LEXIS 7850 (N.D. Ill. Jan. 27, 2011).

The District Court noted the issues with terminating an employee alone being a triggering event for a lawsuit:

It would be too onerous a burden to place on all employers a duty to preserve any and all documents that form the basis for the termination of an employee because of the possibility that the terminated employee might sue.

Banks, at *7.

The District Court upheld the Magistrate Judge’s findings that the Defendant had a duty to preserve, because the Defendant could reasonably anticipate litigation when the Plaintiff brought his unemployment claim. Banks, at *7.

The central issue in the dispute was whether the Plaintiff hung up on a customer. The key evidence for his termination were the audio recordings, which still existed when the Defendant appealed the Plaintiff’s initial award of unemployment benefits, however were later destroyed. Banks, at *7-8.

Bow Tie Thoughts

The duty to preserve is a malpractice area for attorneys when transitioning from records information management to a litigation hold. Moreover, eDiscovery is now years beyond email messages and Excel files. Attorneys must discuss with their clients the different electronically stored information in their possession, how they communicate both internally and externally, and what ESI can be related to the subject matter of the lawsuit.

Voicemail/audio recordings is just one example of ESI that can be overlooked. Text messages and social media are already “common” in litigation. It is only a matter of time before augmented reality will start appearing in litigation.

Attorneys must be proactive in conducting client interviews and understanding the types of ESI that can be subject to a lawsuit. To not do so is to risk singing the blues at a sanctions hearing.

Establishing Prejudice: Putting the Brakes on Spoliation Motions

In a very short opinion, Magistrate Judge Facciola showed a path to putting the brakes on spoliation motions: “Assessing whether sanctions are warranted for the loss of otherwise discoverable information is a function of whether a party has been prejudiced by that loss.”  Davis v. Grant Park Nursing Home, LP, 2010 U.S. Dist. LEXIS 118853 at *3 (D.D.C. Nov. 9, 2010).  

Demonstrating prejudice is not new.  Judge Facciola discussed it in D’Onofrio v. SFX Sports Group, Inc., 06-cv-687, 2010 U.S. Dist. LEXIS 86711, at *11 (D.D.C. Aug. 24, 2010).  As Judge Facciola explained:

Prejudice to a party can only be examined by looking at all the information that is available, for only in that context can the nature and extent of the loss suffered be accurately gauged.

Davis, at *3. 

The path to controlling the rush to file spoliation motions is when these motions should be filed.  In this case, the Court held that discussing sanctions was “premature” until the end of discovery.  Davis, at *3-4. At that time, the Court could accurately determine if there had been any prejudice from the alleged destruction of electronically stored information.  Davis, at *4.

Bow Tie Thoughts

The failure to issue a litigation hold and the preservation of evidence are unquestionably important issues.  Courts seek the truth of a matter and if evidence has been destroyed, sanctions should rightly issued on the offending party.

Now for the big “however”: the question of sanctions is not a game.  The hint of a failure to issue a litigation hold is not reason to put a party in a stockade.  While it should put a party on alert, there must be prejudice before a call to arms for sanctions.  Moreover, the a court is best able to determine if a party has suffered prejudice is at the close of discovery, not the beginning or middle of it.

BlackBerry Boo-Boos: How to Get the Judge to Text You Adverse Inference Instructions

Southeastern Mechanical Services, Inc., v Brody, et al., is the story of how wiping the data off your BlackBerry can result with the Court having you drawn and quartered.  Not with horses, but with adverse inference instructions.

In a trade secret case where Individual Defendants left the Plaintiff’s company and went to the Defendant’s company, issues with BlackBerry data spoliation exploded like a fireball in the night.  Southwestern Mechanical Services, Inc., v Brody, et al., 2009 U.S. Dist. Lexis 85430 (August 2009).  There is an “app” for that sort of spoliation called adverse inference instructions.

The key facts of the case took place in a matter of days.  The three Individual Defendants purchased their BlackBerries between May 28 to May 30, 2008.  The devices were used for email, phone and text messaging. 

The Individual Defendants’ BlackBerries were synced with the Defendant’s email server between June 3 to June 4, 2008.  SMS, at *5-6. 

A demand letter was sent from the Plaintiff on June 6, 2008 and email messages were preserved on June 10.  SMS, at *7.  A temporary restraining order (TRO) was issued on June 13 and the Individual Defendants were instructed to return their laptops and BlackBerries on June 17, 2008.  SMS, at *7-8.

The Defendants represented that no email messages were lost from the Individual Defendants’ BlackBerries or laptops because they were synced to the Defenant’s BlackBerry Enterprise Server.  SMS, at *4.  As such, the email messages were not on any hard drives, but an email server.  SMS, at *6.

Forensic Examination of the BlackBerries

After the execution of a litigation hold and the physical sequestering of the Individual Defendants’ BlackBerries and computers, the Plaintiff’s expert performed a forensic examination using Paraben Device Seizure software on the BlackBerries.  SMS, at *9-12.

The Plaintiff’s expert quickly determined the BlackBerries had been wiped clean: No phone records, no text messages, no email messages or applications existed on the devices.  SMS, at *10.  Moreover, the data on the devices was different from what would be on a brand new BlackBerry and different from one only used as a phone.  SMS, at *11, fn 8.

This sort of thing does not happen by accident.  The only ways this would happen (according to the expert) would be by a “hard reset” or someone entered the incorrect password ten times.  SMS, at *11.

The Defendant’s forensic expert also determined that the BlackBerry SIM cards contained some contacts and text messages, but not emails messages. SMS, at *12.

Dial S for Spoliation

For those who are not familiar with spoliation, it is the intentional destruction of evidence.  SMS, at *13.  To prove sanctions for spoliation under Florida law, a party must show the following: 

1)       The evidence existed at one point in time;

2)       There was a duty to preserve the evidence on the part of the spoliator; and

3)       The evidence was crucial to the movant’s prima facie case.

SMS, at *14. 

The Court rocketed through these three factors answering all in the affirmative.  SMS, at *15.

The Court found that there were circumstances showing the destruction of the email, text messages and phone data was in bad faith. SMS, at *16-17.  The Court found the Individual Defendants to not be credible in explaining the data loss, because the expert testimony showed that 3 of the 4 ways the data could have been lost were by intentional acts.  SMS, at *17.  Further, the Individual Defendants had both the motive and opportunity to erase the data on their BlackBerries. SMS, at *16-17.

Furthering the Individual Defendants’ credibility gap, there was evidence of other deleted data.  One Individual Defendant’s prior computer he used while employed by the Plaintiff had all of its email and contacts deleted.  The other Individual Defendant used a software program to delete all of the data on it before returning it to the Plaintiff.  SMS, at *19-20.   

The Court found that the appropriate sanction for the loss of data was an adverse inference instruction regarding the Individual Defendants failure to preserve data on BlackBerries that would be advantages to Plaintiffs and disadvantageous to the Individual Defendants. SMS, at *23.  While default judgment was avoided, the Court’s irritation is visible throughout the opinion.  

Bow Tie Thoughts

The Court’s analysis of the BlackBerry preservation and data deletion was very well done.  This case highlights how data on a BlackBerry (or any Smartphone) can be deleted and the importance of having procedures to enact a litigation hold on these devices.