This article appeared in Cybersecurity Law & Strategy, an ALM publication for privacy and security professionals, Chief Information Security Officers, Chief Information Officers, Chief Technology Officers, Corporate Counsel, Internet and Tech Practitioners, In-House Counsel. Visit the website to learn more.

Three cases from the summer of 2018 reinforce some of the key themes of recent e-discovery case law: the ubiquity of electronically stored information (ESI) including social media in civil litigation and the continuing evolution of courts' interpretations of FRCP 37(e). Rulings this June and July in the cases of Hinostroza v. Denny's Inc., Lawrence v. City of New York, and In re Methodist Primary Care Grp. demonstrate the broad discretion judges have — both in allowing or limiting discovery and imposing sanctions — as well as the fact that attorneys must understand and act based on both federal and state rules.

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Court Grants Request to Produce Social Media Data, Orders Supplementation Regarding FitBit Data

Hinostroza v. Denny's Inc. (D. Nev. June 29, 2018)

In the past, social media and other new data types (i.e., activity tracker information) have not been widely requested in e-discovery activities. With increased social media use, however, that is changing, and processes should be in place to preserve and produce this data, especially in a world becoming more dependent on social media and new data types for communicating and tracking analytics.

Case Facts

In this slip and fall case, the defendant, Denny's, moved to compel discovery of a variety of data sources.

In discovery, the defendant asked the plaintiff to produce various categories of documents, including:

  • Documents and medical records related to two prior incidents;
  • Text messages sent in the 48 hours after the accident;
  • Any data from a FitBit or other activity tracker for five years prior to the accident;
  • Review of the plaintiff's social media account and
  • Employment records.

When the plaintiff didn't fully produce the requested materials, the parties met and conferred three times to resolve their disputes. Nevertheless, the two sides couldn't come to agreement on the e-discovery parameters, and the defendant filed a motion to compel.

The Ruling

The defendant's motion to compel discovery was granted in part. The court carefully analyzed each of defendant's requests and permitted discovery of relevant records, narrowly tailoring some of the requests, including the social media request, to materials relating to the alleged accident or injuries.

The court noted that the "burden is on the party resisting discovery to show why a discovery request should be denied by specifying in detail, as opposed to general and boilerplate objections, why 'each request is irrelevant.'" In these instances, the court ruled the plaintiff did not meet this burden.

The court further held that social media evidence is discoverable. For all e-discovery, not just claims of emotional distress, social media data is discoverable if it is relevant to the issues involved in the case. The court went on to state that social media activity could be "reflective of an individual's contemporaneous emotions and mental state."

The plaintiff responded to request for FitBit data by stating she had no responsive documents but reserved the right to supplement her response. The court did not have sufficient information to determine whether plaintiff conducted a reasonable inquiry to locate such data. Therefore, the court ordered plaintiff to describe the search she conducted.

Expert Opinion

"This is something that the attorney has to talk to the litigant about. Attorneys should be asking, at the earliest stages of the case, what type of ESI does her client have? Preservation may be problematic, depending on the nature of the electronic information. It might be transitory. It might not be something that can, generally speaking, be preserved. But the issue with this is, the lawyer has to talk to the client, understand what's there, and make some informed judgments about how you go about preserving information. There's no question that the Federal Rules pertain to any type of electronic information. This decision says that pretty clearly." Hon. Ronald Hedges, U.S. Magistrate Judge (Ret.), and Senior Counsel, Dentons.

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Altered Photos Lead to Case Dismissal

Lawrence v. City of New York (S.D.N.Y. July 27, 2018)

While there are new FRCP rules that more clearly define when spoliation sanctions are warranted, the court is still afforded a variety of sources of authority to sanction parties for e-discovery misconduct.

Case Facts

In this civil rights case, the plaintiff contended that defendants entered her house without a warrant and damaged property. Within e-discovery, the plaintiff produced photos to show the condition of her house after the improper search was conducted. The plaintiff testified that the photos produced were taken days after the incident.

Based on conflicting testimony of who took the photos, the defendants produced the photos' native files, including metadata. After checking the photos' metadata, the photos were found to have been taken two years after the incident.

The defendants moved for case dismissal against the plaintiff based on the production of 67 photos that had been altered (perhaps intentionally) by the plaintiff.

The Ruling

Based on the inherent power of court, the court dismissed the case due to plaintiff's continued "pattern of evasion and untruths" surrounding the date on which the photos were taken to bolster the plaintiff's claims against the defendant.

Despite the deceptive nature of the evidence, the plaintiff's attorney was not sanctioned by court. The attorney's production of the staged photos was "careless, but not objectively unreasonable." The plaintiff's attorney repeatedly tried to gain access to the photos in questions after the incident and was "unfamiliar with the process for checking a digital photograph's metadata." Thus, the attorney did not know about the fraudulent nature of the photos and was deemed to have conducted a reasonable inquiry into the completeness and correctness of the production.

Expert Opinion

If you're dealing with electronic information, there's nothing wrong with going to the client and saying, "I want to see what this information is, because I am certifying to it being, generally speaking, accurate." And as this case demonstrates, that might even mean metadata. It looks like the lawyer did not look at the metadata in the first instance, but accepted representations of the client that the photos are what they purport to be and were taken when they were purported to be. But "stop, look, and listen" is a good way to describe a reasonable inquiry. Don't just rely on what you got. Ask a couple questions, at least with electronic information." Hon. Ronald Hedges, U.S. Magistrate Judge (Ret.), and Senior Counsel, Dentons.

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State Court Rules Third Party Not Allowed to Search Electronic Database

In re Methodist Primary Care Grp. (Tex. 14th Dist. Ct. App. June 21, 2018)

Most litigation is conducted in state, not federal courts. While it's important to be aware of the Federal Rules of Civil Procedure, states have their own rules about e-discovery, and attorneys practicing in those states must understand the rules that apply to them.

Case Facts

This dispute between two doctors centers on an allegation of trade secret theft and interference with patient relationships when two physicians left one practice to join Methodist Primary Care Group.

The e-discovery dispute over production arose when a motion or trial level judge allowed a third-party expert to "search electronic practice management systems … in the cloud …" used by relators (not parties to the litigation) as part of the e-discovery process in response to the plaintiff's motion to compel discovery.

The relators filed a writ of mandamus requesting the appellate court to vacate the original discovery order based on four factors:

  1. Data wasn't adequately requested;
  2. Relators never defaulted on their discovery duties, and there was no evidence that an additional search would find responsive data;
  3. The order requested data outside the plaintiff's original request; and
  4. The order improperly granted access to data outside the scope of this litigation.

The Ruling

The appellate court vacated the lower court's discovery order on multiple grounds: the relators had not defaulted on their discovery obligations; the relators did not have possession, custody, or control over the data; there was an "undue intrusion" by allowing third-party access to another entity's electronic database; and finally that the order's scope was much broader than the original discovery request.

Expert Opinion

"Unlike federal courts, which have individualized case management, in many state courts, you'll get a different judge every time you go to court. That means you need to be knowledgeable, specifically of the judge's chambers procedures, and realize that you may not be able to develop a track record of appearing before one judge throughout the entirety of a case. Think about the degree of e-discovery education the judge before whom you're appearing needs. You may be in a jurisdiction where a judge may not be that familiar with electronically stored information." Hon. Ronald Hedges, U.S. Magistrate Judge (Ret.), and Senior Counsel, Dentons.

Analysis

These three decisions have helped clarify some key issues in e-discovery. Attorneys must work with their clients early in litigation to define and preserve all relevant ESI, including social media and IoT devices.

While the attorney may not be liable for client misrepresentations, asking questions about ESI, rather than taking it at face value, can help avoid potential missteps or misrepresentations. In addition to understanding the ESI in a legal matter, it's equally important to understand the rules and procedures of the court in which you're litigating; rules may vary state to state, and procedures may vary from court to court.

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Mike Hamilton is the Director of E-Discovery Programs at Exterro. With a legal and business background, Mike is experienced and passionate about creating thoughtful, out-of-the-box educational resources that help keep legal teams interested and on top of emerging need to know e-discovery issues.