Gibbons Law Alert

Gibbons Law Alert

Author: Brielle A. Basso

Dialing It In: E.D.N.Y. Denies Motion to Compel Production of Cell Phone for Forensic Examination Upon Mere “Speculation” That Metadata Was Deleted or Altered

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Posted in Legal Decisions & Court Rules

On July 29, 2022

This blog has previously noted the recent uptick of district courts authorizing forensic experts to conduct examinations and forensic imaging of cell phones to ensure the preservation and production of relevant electronic data. While we have discussed recent cases that have ordered such forensic imaging, such examination is not appropriate in every case and courts must continue to keep such “drastic” and “intrusive” discovery measures in check. In this regard, the District Court for the Eastern District of New York recently denied a defendant’s motion to compel the plaintiff to produce, for forensic examination, a cell phone that recorded videos already produced by the plaintiff in native format.

Keeping the Curtain Closed: Connecticut District Court Denies Discovery on Discovery Where No Basis to Claim Deficiencies Shown

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Posted in E-Discovery / General Litigation

On April 28, 2022

Despite the broad scope of discovery under Federal Rule of Civil Procedure 26, courts are generally reluctant to permit “discovery on discovery,” i.e., discovery requests related to a party’s efforts to search for, locate, preserve, and collect relevant electronically stored information (ESI). In a case brought against Wesleyan University (the “University”) by a student expelled for alleged cheating, the United States District Court for the District of Connecticut recently declined to compel such discovery on discovery, where the plaintiff requested that the defendant identify and “catalog all of the devices on which responsive communications reside.” The discovery request was made well after the Rule 26 conference – discovery had been ongoing for nearly two years – and the plaintiff waited almost a full year after serving the requests to file her motion to compel. In light of these facts and the plaintiff’s failure to establish an “adequate factual basis” for requiring such discovery on discovery, the court denied portions of the plaintiff’s motion to compel. In Doe v. Wesleyan University, the plaintiff, a former student at the University, was expelled for allegedly cheating on her exams by improperly accessing the University’s “computerized learning management system” called “Moodle” during her exams. The University conducted an investigation and held an Honor Board proceeding, and the board decided...

Establishing “Intent to Deprive” Under Rule 37(e): District Court Imposes Adverse Inference Instruction Based on Timing of Spoliation

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Posted in General Litigation

On October 28, 2021

This blog has previously discussed the challenges a litigant faces in moving for the so-called “severe sanctions” pursuant to amended Rule 37(e). With the 2015 amendment to Rule 37(e), a moving party seeking severe spoliation sanctions must establish that the opposing party “acted with the intent to deprive” the requesting party of the electronically-stored information (ESI) in the litigation at issue. In the absence of an explicit admission that a responding party deleted ESI with the subjective intent to deprive the requesting party of the same, a requesting party often faces an uphill battle establishing the “intent to deprive” requirement. A recent decision from the District Court for the District of Arizona provides an example of the type of circumstantial evidence – including the timing of the spoliation at issue – a moving party can rely on to potentially support the imposition of severe sanctions. In Federal Trade Commission v. Noland, the Federal Trade Commission (FTC) was investigating defendant Noland and his business, Success By Health (“SBH”), for allegedly “operat[ing] as an illegal pyramid scheme” and making false statements to SBH’s affiliates. In May 2019, Noland inadvertently discovered the FTC’s investigation and, when the FTC realized Noland found out about the investigation, the FTC advised SBH and Noland to preserve relevant documents. The day after...

Hoisted on Their Own Petard: Production of Inaccessible Data That Later Becomes Unavailable Will Not Support a Suppression Claim Based on Spoliation Against the Recipient

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Posted in General Litigation

On September 1, 2021

The trial of Elizabeth Holmes, the founder and former Chief Executive Officer of Theranos, Inc., has finally commenced after numerous well-publicized delays. A little more than a month ago, the District Court for the Northern District of California denied Holmes’s motion to suppress evidence prior to her criminal fraud trial, finding that it was the “deliberate actions” of third parties (Theranos) that resulted in the loss of evidence contained on a database, not the prosecutors’ actions. Indeed, Theranos “knowingly and without comment produced an inaccessible” and encrypted copy of a database, and then dismantled the database hardware, rendering it permanently “unusable” only days after its production. In U.S. v. Holmes, the defendant filed a motion to suppress evidence, pursuant to Rule 12(b)(3)(C), of customer complaints and testing results, as well as findings from a 2016 report. Theranos used a bespoke database called the Laboratory Information System (LIS) that “housed, among other things, all patient test results and all quality control data at Theranos.” In 2015, federal government agencies (the “Government”) began investigating Theranos and, in April and June 2018, “served grand jury subpoenas on Theranos for information specifically from the LIS database and requested a copy of the database itself, along with the necessary software to access and search it.” One day after the grand...

Inviting Scrutiny: “Obstructionist” Conduct Leads to District Court Ordering Forensic Examination of Defendant’s Cell Phone

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Posted in General Litigation

On June 23, 2021

Courts have been authorizing forensic experts to conduct examinations of electronic devices for decades. However, we have noticed a recent uptick of district courts ordering the appointment of an independent forensic expert to create images of and forensically examine cell phones to ensure the preservation and production of relevant electronic data particularly where the party in control of the evidence has been less than forthcoming in their discovery obligations. The District Court for the Southern District of Florida is one of the latest courts to order such a remedy, granting plaintiff’s motion to compel a forensic examination and ordering that an independent expert “mirror image and/or acquire all data present on Defendant’s cell phone.”

“The Death Penalty Lives”: Magistrate Judge Recommends Entry of Default Judgment After Defendants Manipulate and Permanently Delete Electronic Data

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Posted in General Litigation

On May 20, 2021

This blog has previously discussed cases in which district courts considered and sometimes ultimately entered the so-called sanctions “death penalty” – a default judgment order of terminating sanctions, pursuant to Rule 37(e)(2), as a result of a party’s destruction of evidence. Recently, a U.S. District Court for the Southern District of Texas magistrate judge recommended granting terminating sanctions, i.e., default judgment, after finding that the defendants “delayed discovery, manipulated electronic data, and permanently deleted a significant amount of electronic data.” The magistrate judge noted that the deletions that occurred required the user to “go into the bowels of the system, requiring advanced knowledge,” and the electronic data was deleted “within days” of an agreed upon preliminary injunction. In Calsep Inc. v. Intelligent Petroleum Software Solutions, LLC, the plaintiffs alleged misappropriation of trade secrets after their employee, one of the defendants, left their employment and allegedly downloaded the plaintiffs’ trade secret information to a personal device. According to the plaintiffs, the former employee then used the trade secret information with the other defendants to develop oil and gas industry software to compete with the plaintiffs’ software. The plaintiffs attempted to obtain discovery, including specifically the defendants’ “source code control system, which ordinarily contains the complete, auditable, and accurate history of the creation and evolution of software...

“It Wasn’t My Fault”: Court Rejects Attempts by Client and Attorney to Duck Responsibility and Sanctions Both Jointly

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Posted in E-Discovery: Legal Decisions and Court Rules

On April 6, 2021

This blog has previously discussed the importance of cooperation among parties in a litigation to effectuate a comprehensive discovery framework; however, a recent decision from the District Court for the Northern District of California exemplifies the importance of joint responsibility and collaboration between attorneys and their clients when dealing with e-discovery matters, including preservation, collection, and production of electronically stored information (ESI). In a case that ultimately settled and involved both foreign and domestic parties, the court granted a motion for monetary sanctions pursuant to its inherent authority and Rule 37, after finding that the plaintiff’s discovery misconduct “not only forced [defendant] to incur additional attorneys’ fees but … also forced the court to expend considerable resources beyond what was necessary.” Because both the plaintiff and its former counsel “failed in their responsibilities,” the court imposed sanctions jointly and severally against them. In Optrics Inc. v. Barracuda Networks Inc., the plaintiff, a Canadian engineering firm, filed suit in August 2017 against the defendant, an American company, “bringing trademark, contract, and other claims stemming from allegedly unfair and deceptive business practices by [defendant] during the parties’ thirteen-year business relationship.” Beginning in June 2019, discovery disputes and “discovery violations” by the plaintiff plagued the litigation. In February 2020, “with discovery still mired in disputes,” the parties stipulated...

“Accidentally” Destroying Years of Text Messages Is No Defense to Spoliation Sanctions

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Posted in General Litigation

On March 1, 2021

The New York Supreme Court recently granted a defendant spoliation sanctions, in the form of an adverse inference instruction, against the plaintiff for the “accidental” destruction of years’ worth of text messages from the plaintiff’s cellphones. In Iacovacci v. Brevet Holdings, LLC, the plaintiff was terminated from his employment with the defendants in October 2016, through a letter that referred to “possible litigation” and requested that the plaintiff “preserve … electronically stored information (‘ESI’) relating” to the defendant’s business, “includ[ing] all emails, text messages, … and the like, … [including] material on a phone.” Several days after receiving the termination letter, the plaintiff filed a wrongful termination and breach of contract action, and the defendants filed an answer with counterclaims alleging misappropriation of the defendants’ documents, breach of fiduciary duty, and self-dealing. Thereafter, a years-long discovery dispute ensued. The defendants served several requests for documents, including text messages, but the plaintiff objected to the demands as irrelevant and overbroad, and in March 2018, the plaintiff filed a motion for a protective order. In May 2018, the court ordered the plaintiff to produce cellphone and electronic calendar records as requested by the defendants, and at a status conference in December 2018, the court, again, directed the plaintiff to produce the text messages within 30 days. Finally,...

District Court Denies Protective Order in Putative Class Action: Production of Relevant ESI May Be Time Consuming and Expensive, But Not Unduly Burdensome

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Posted in General Litigation

On December 17, 2020

The District Court for the Eastern District of California recently denied a defendant’s motion for a protective order in a putative class action, finding that the information requested by plaintiff was relevant and subject to pre-certification discovery, and that defendant did not show that the electronically stored information (ESI) was inaccessible due to undue burden or cost, pursuant to Rule 26(b)(2)(C). Additionally, the court determined that even if defendant could show that the ESI was “inaccessible,” plaintiff demonstrated “good cause” to order production of the ESI notwithstanding the potential burden and cost. In Sung Gon Kang v. Credit Bureau Connection Inc., plaintiff, a consumer, filed a putative class action alleging that defendant provided businesses with inaccurate consumer credit information, including that plaintiff and the proposed class of consumers were included on the United States Treasury Department’s Office of Foreign Assets Control (OFAC) list. A consumer is ineligible for credit in the United States if he or she is included on the list. Plaintiff sought to “represent classes consisting of individuals ‘about whom Defendant … sold a consumer report to a third party’ that included an OFAC Hit.” The discovery dispute centered on defendant’s objections to plaintiff’s first set of written discovery requests. Specifically, defendant objected to requests seeking the identities of individuals who had an...

The Destruction of a “Startling Amount of Discovery”: District Court Imposes Severe, Case-Ending Sanctions Pursuant to Rule 37(e)(2)

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Posted in General Litigation

On November 18, 2020

The United States District Court for the Eastern District of Washington recently entered a default judgment order of terminating sanctions against defendants pursuant to Rule 37(e)(2), as a result of defendants’ wholesale destruction of a “startling amount of discovery” as part of defendants’ adoption of a document disposition program during the course of the litigation. The district court found that the defendants “purposefully destroyed” relevant electronically stored information (ESI) “to avoid their litigation obligations.” This decision highlights the importance of extreme caution in the adoption of a document disposition or information governance program, which necessarily eliminates typically large quantities of ESI, during the time period when the duty to preserve relevant ESI has been triggered. In Moreno v. Correctional Healthcare Companies, Inc., plaintiffs filed constitutional claims against defendants–providers of healthcare services to inmates–after plaintiffs’ eighteen-year-old son died while in defendants’ custody. In January 2018, prior to filing the lawsuit, plaintiffs sent a letter to defendants notifying defendants of their plan to file a lawsuit and advising defendants to “preserve all paper and electronic records that may be relevant to our clients’ claims” including “all e-mails and other electronic and paper records regardless of where they are maintained.” Plaintiffs filed the lawsuit in October 2018 and, in December 2018, served discovery requests on defendants, seeking certain categories...

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