A Poor Substitute: The Eastern District of Texas Holds That Facebook Screenshots Are Not Sufficient to Avoid Sanctions Under Rule 37

In Edwards v. Junior State of America Foundation, the Eastern District of Texas determined that screenshots of social media messages are not sufficient evidentiary substitutes for spoliated native files. As a result of the plaintiffs’ discovery misconduct and spoliation of relevant electronically stored information (ESI), the court imposed sanctions under Rule 37(c) and (e) against the plaintiffs for failing to preserve Facebook messages in native format, including its metadata, which prevented the defendant from authenticating the messages.

The plaintiffs filed a complaint against the defendant alleging that a student member of the defendant, a youth organization, sent “racist and homophobic Facebook messages” to one of the plaintiffs (the “Messages”). After the alleged Messages were sent, the student’s father filed a complaint with the youth organization which included .jpeg “snapshot” images of the Messages. During the litigation, the defendant served written discovery requests on the plaintiffs, seeking production of ESI from the plaintiff’s Facebook Messenger account to authenticate the alleged Messages, including the production of the Messages in HTML or JSON format. The native format of Facebook messages can typically be retrieved and produced in HTML or JSON format and contain metadata that can be used for authenticity purposes. The defendant’s request for native format would have allowed the defendant to authenticate the Messages. The plaintiffs never objected to or responded to the discovery requests at issue and failed to produce any requested documents. The plaintiffs’ failure to properly respond to the discovery requests continued for close to a year.

The defendant repeatedly made efforts to procure the single file ‒ the alleged racist Messages at the heart of the plaintiffs’ claims ‒ to no avail. Consequently, the defendant filed a motion to compel production of the ESI from the plaintiffs and a motion for sanctions for failure to comply with its discovery requests. The plaintiffs failed to respond to either of these motions. The court thus granted both motions. Only after the court granted the motions did the plaintiffs produce certain critical documents to the defendant, including two expert affidavits from individuals affiliated with a digital-forensics firm – one of which was dated 2016, four years prior to the production – and certain electronic files recovered from the smartphone at issue. In these submissions, the plaintiffs admitted that the Facebook account had been permanently deleted and thus, the alleged native format Messages had been destroyed.

The defendant brought a motion to dismiss pursuant to Rule 37(b), (c), and (e), arguing that the plaintiffs’ belated disclosures did not include the native Facebook message files, “i.e., proof of the alleged Messages in JSON or HTML format, as requested by [the defendant] and as required by Court order.” Although the court stated that the plaintiffs arguably violated the order compelling production, thus subjecting them to sanctions under 37(b)(2)(A), it concluded that the most extreme sanction – that is, dismissing the case or striking the pleadings – was inappropriate here. Thus, the court looked at whether the plaintiffs violated Rules 37(c) and (e).

The court held that the plaintiffs violated Rule 26(a) regarding mandatory initial disclosures by producing affidavits from an expert that had not previously been disclosed and submitted after the expert-designation deadline. Because the plaintiffs violated Rule 26(a), the court imposed sanctions under Rule 37(c) by excluding the expert affidavits as untimely expert disclosures, as well as the forensically preserved data the plaintiffs produced. The court further looked at whether it could impose sanctions under Rule 37(e) and found it could. The record showed that the lost Messages were essential to the litigation and the plaintiffs should have known of the requirement to preserve the actual Messages rather than simply screenshots pursuant to Federal Rule of Evidence 1002 (the so called “Best Evidence” rule).The court found that the screenshots were not sufficient as “original” because they were not an “output” that “accurately” reflected the information. In determining the award of sanctions under Rule 37(e), the court found that the defendant met all of the gating elements of that rule, including that there was no doubt that the defendant suffered prejudice as a result of the plaintiffs’ failure to preserve the ESI at issue; the defendant had been deprived of the access to the actual Messages and could not determine the authenticity of these Messages. Accordingly, the court prohibited the plaintiffs from offering any evidence of the alleged Messages.

This decision serves as a reminder of the critical need to preserve all potentially relevant social media evidence in native format, particularly where such evidence is central to the allegations in the case. The decision also highlights the need to keep in mind the disclosure obligations under Rule 26 and make timely disclosures of expert evidence that bears on these issues. Best practices dictate that these matters be addressed in the context of the parties’ mandatory meet and confer sessions at the outset of the case and should become part of the parties’ ESI protocol that results from those meetings.

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