iPhones, Twitter, Deleted Emails and ESI Under CPLR 3211(A)(1)

A commercial division decision in Advanstar Comm. v. Pollard,¹ recently answered in the negative the question of whether an employer’s remote “wiping” of an employee’s personal iPhone violated the Stored Communications Act, 18 U.S.C. §2701(a). Discovery of social media includes non-private tweets and Twitter subscriber information, and two recent motion court decisions in Juice v. Twitter² and in Kerner v. Lopiccolo³ ordered the production of tweets, finding that the proper predicate for their relevance had been established. It is no surprise that courts are questioning affidavits attesting to the purported unavailability of relevant emails and, in Alberta v. Fossil Indus.⁴ after reviewing an expert computer forensic affidavit, the court directed that emails be produced in the format agreed to and that full and complete responses to the discovery demands be provided or defendant’s answer would be stricken. Finally, recent First Department decisions address whether emails are proper “documentary evidence” under CPLR 3211(a)(1), and concluded that such a determination is fact-dependent.

Remote ‘Wiping’ of iPhones

In Advanstar,⁵ an employee gave notice to his employer that he was resigning and that he would be going to work for a competitor. The employer that day then remotely “wiped” the entire contents of the employee’s personal iPhone from which the employee had been able to send and receive emails from his employer’s email account and communicate with business contacts. As a result, the employee claimed that he “lost his personal and business contacts, personal and business notes, text messages, instant-messaging messages, voicemails, several hundred photographs of his family and friends, personal journals, videos, and music.” The employee moved for partial summary judgment on counterclaims alleging trespass to chattel, violation of the Stored Communications Act (SCA) and conversion predicated upon the loss of his personal information and data from his personal iPhone. The motion court ruled that “[b]ased on the lack of any inspection of [defendant's] iPhone or any meaningful account of what exactly [the employee] lost when his iPhone was allegedly remotely wiped clean, a factual issue exists as to what information, if any, [the employee] lost.”