Tagged: Cell Phones

Caught in the Sauce: Papa John’s Founder’s Failure to Preserve ESI in Cellphones Leads to Curative Sanctions Despite Initial Preservation Efforts

Practitioners and litigants alike largely understand that they must preserve evidence related to anticipated litigation. One potential pitfall, however, lies in the continuing nature of that obligation. Generally, a litigant’s duty to preserve evidence continues despite, for example, the collection of relevant documents or the imaging of devices containing relevant information. These principles were illustrated in a cautionary opinion by the Honorable Colin H. Lindsay, United States Magistrate Judge for the United States District Court for the Western District of Kentucky, in Schnatter v. 247 Grp., LLC, No. 3:20-3 (BJB) (CHL), 2022 WL 2402658 (W.D. Ky. Mar. 14, 2022). The case arose in the wake of Forbes Magazine publishing an article detailing a leaked conference call between the founder of Papa John’s, John H. Schnatter, and a marketing agency, during which Schnatter made racially charged comments. Within a week of publication, Schnatter was out as Chairman of Papa John’s and the University of Louisville announced it would rename the then Papa John’s Cardinal Stadium. Schnatter immediately retained counsel to assist in his separation with Papa John’s and explore potential affirmative claims. On July 25, 2018, just two weeks after the Forbes article was published, Schnatter’s own counsel sent him a Litigation Hold Notice. The Notice outlined his document preservation responsibilities, including suspending any automatic destruction...

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

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.

Crash Course: Court Provides Refresher on Rule 37(e) Spoliation Sanctions

A recent decision from the District of Arizona provided a refresher for litigants and judges alike in the framework under which electronically stored information (ESI) spoliation sanctions must be addressed pursuant to Federal Rule of Civil Procedure 37(e). The author of the opinion – District Judge David Campbell – expressed his frustration that Rule 37(e) continues to be ignored by some judges and litigants in the application and adjudication of motions seeking ESI spoliation sanctions. Judge Campbell’s frustration is easily understood, as he chaired the Advisory Committee on the Federal Rules of Civil Procedure during the 2015 revision to Rule 37(e). In Fast v. GoDaddy.com LLC, Judge Campbell seized the opportunity to meticulously explain each requirement of Rule 37(e) and then apply those requirements to adjudicate the spoliation claims before him. In this case, involving sex and disability discrimination claims, the plaintiff claimed she was fired for lacking the technical skills required for her employment, and that male employees with lesser technical skills were retained by the defendants. At the close of discovery, the defendants asserted discovery violations against the plaintiff, seeking sanctions for the spoliation of relevant ESI under Rule 37(e) and for the failure to produce relevant information under Rule 37(c)(1). Since the 2015 amendments to Rule 37(e), there has been controversy as...

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

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.”

Can You Find Me Now?: New Jersey Supreme Court Says Police Need a Warrant to Access Location Information From a Cell Phone

“Advances in technology offer great benefits to society in many areas. At the same time, they can pose significant risks to individual privacy rights.” So begins the recently-issued unanimous decision of the New Jersey Supreme Court in State v. Earls, in which the Court found that “cell-phone users have a reasonable expectation of privacy in their cell-phone location information” and, therefore, under the New Jersey Constitution, “police must obtain a search warrant before accessing that information.” Coming at a time when the public’s attention is particularly focused on the tension between technology and privacy, this opinion represents a groundbreaking new rule of law on the constitutional limits of new methods of tracking and surveillance. (See also the U.S. Supreme Court’s 2011 decision in United States v. Jones and the New York Court of Appeals’ recent opinion in Cunningham v. New York State Department of Labor.) With this unprecedented decision, the New Jersey Supreme Court becomes the first state supreme court to find a constitutionally-protected privacy right in the location of a personal cell phone.

Magistrate Judge Orders Production of Social Media Discovery But Fashions Novel Protocol Designed to Protect Privacy Concerns

Where the requesting party makes a threshold showing of relevance, courts now routinely grant discovery of social media notwithstanding so-called “privacy objections.” Indeed, as one court recently noted, there is “no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.” But on November 7, 2012, in EEOC v. Original Honeybaked Ham Co., Magistrate Judge Michael E. Hegarty of the United States District Court for the District of Colorado ordered all class members to produce social media discovery to the defendant subject to what the EEOC ultimately called a “somewhat unusual procedure.”

New Jersey Supreme Court Considering Guidelines Concerning Use of Electronic Devices in Courtroom

The Bench Bar Media Committee of the New Jersey Supreme Court (“Committee”) has adopted, and forwarded to the Supreme Court, Guidelines for the Usage of Electronic Devices in New Jersey state courts. The proposed Guidelines comprehensively address the use of Electronic Devices in the courtroom, the common areas of a courthouse and the grounds of a courthouse. If adopted by the Supreme Court, the proposal will represent a major revision to the existing Guidelines.

Third Circuit Considers Privacy Interests in Electronically Collected Information and Whether Such Information is Voluntarily Publicized By User of Electronic Communication Devices

In September 2010, the Third Circuit Court of Appeals became the first federal appeals court to rule on the question of whether the government is required to establish probable cause to obtain cell site location information (“CSLI”) from a cell phone provider. See In the Matter of the Application of the U.S. for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 620 F.3d 304 (3d Cir. 2010). CSLI includes historical information that is collected by cell towers during cell phone calls, which can later be used to render some opinions as to the location of the cell phone during those calls.

Federal Judge Rules Government Failed to Preserve Text Messages and Orders Adverse Inference Instruction in Criminal Case

On October 21, 2010, in the highly publicized New Jersey government corruption case U.S. v. Suarez, et ano., No. 09-932, 2010 U.S. Dist. LEXIS 112097 (D.N.J.), the Honorable Jose L. Linares, U.S.D.J., held that the FBI had a duty to preserve Short Message Service electronic communications (i.e., text messages) exchanged between its agents and their cooperating witness, Solomon Dwek, during the course of the investigation of defendants Anthony Suarez (mayor of Ridgefield, NJ) and Vincent Tabbachino (former Guttenberg, NJ councilman and police officer). Despite the lack of evidence of bad faith on the part of the government, because the text messages were not preserved, the Court found clear prejudice to defendants and ordered that the appropriate sanction was a “permissive” adverse inference jury instruction.