Key Insight: Plaintiff’s social media account information (Facebook and Instagram) is relevant and proportional to his alleged damages for loss of the capacity to enjoy life. Social media is not privileged or protected by any right of privacy.
Nature of Case: Admiralty
Electronic Data Involved: Social Media
Key Insight: The three categories of documents sought by Plaintiff are relevant to the litigation. Further, production of the three categories of documents would not be disproportionate to the needs of the litigation. Production of the documents, which had already been digitized and indexed (and produced) for previous litigation, would be of little expense and/or burden to Defendant. The burden and/or expense of producing the documents do not outweigh the likely benefits of production.
Nature of Case: Product Defects
Electronic Data Involved: Digitized and indexed manuals and other documents
Key Insight: At issue were “racist and homophobic Facebook messages” one high school student allegedly sent to another high school student (plaintiff), both of whom were members of the defendant’s youth organization. Plaintiffs provided a partial .jpeg image (screenshot) of the alleged message and defendant requested additional ESI to authenticate the messages, namely HTML or JSON files, and associated metadata. Plaintiffs never objected to the discovery requests and failed to produce any documents for over a year. Plaintiffs then admitted through a digital forensics experts that the Facebook account had been permanently deleted and the native versions of the alleged messages had been destroyed. The court declined to dismiss the case under Rule 37(b)(2)(A) but applied Rule 37(e), finding that the native messages were relevant ESI and were deleted around the time plaintiffs had a duty to preserve them, and they could not be adequately replaced by the available screenshots. Therefore, plaintiffs would be precluded from offering any evidence about the alleged messages.
Nature of Case: Civil Rights
Electronic Data Involved: Facebook Messages
Key Insight: Plaintiff filed a Motion to Compel and to Extend Fact Discovery Deadline after Defendant refused to substantively respond to Plaintiff’s discovery requests. Similarly, Defendant also had filed Motion to Compel Plaintiff to respond to its discovery requests regarding online account information, social media and browser history. The Court granted Plaintiff’s Motion(s) and partially granted Defendant’s Motion to Compel. The fact discovery deadline in the matter was extended to approximately two months after the Court’s order(s).
Nature of Case: Class Action Lawsuit
Electronic Data Involved: Social Media, Online Account History, Privacy Settings on Websites, Internet Browser History
Key Insight: The litigation was over a licensing agreement regarding the use of trademarks owned by Plaintiff on cigars. Plaintiff filed a Motion(s) for a Protective Order and to Compel. The Protective Order sought would to preclude deposition testimony regarding functionality. The Motion to Compel sought to compel Defendant to utilize a new search protocol to find requested information (and documents) and produce financial records.
Plaintiff’s Motion for a Protective Order was granted; its Motion to Compel was partially granted, requiring Defendant to produce financial records, and but denied insofar as it sought to compel Defendant to utilize new search terms to search for documents. Unreasonable delay by Plaintiff in raising the issue(s) of the new search terms and/or purportedly missing documents was a significant factor in the Court’s partial denial of Plaintiff’s Motion.
Nature of Case: Trademark Infringement
Electronic Data Involved: Financial Records, Electronic Documents
Key Insight: In using the proportionality test, each factor should be examined to balance the needs and rights of both parties and determine an appropriate resolution. When requests are overbroad and not proportional to the needs of the case, the court may limit the scope of the documents a party is required to produce.
Nature of Case: Employment Discrimination, Title VII
Electronic Data Involved: Electronic Documents Generally
Key Insight: In litigation over product defect claim(s), Plaintiff filed a Motion to Compel Defendants to produce additional records pursuant to its discovery requests. The Motion centered around search terms that Plaintiff sought to compel Defendants to utilize in searching for responsive records. Reviewing specific Requests for Production, the Court found that they were overbroad and lacked relevance. Plaintiff’s Motion was denied, and Plaintiff was ordered to show why it (and counsel) should not have to reimburse Defendants’ for attorney’s fees and expenses in responding to the Motion.
Nature of Case: Contract Product Liability
Electronic Data Involved: Search Terms
Key Insight: Plaintiff filed a Motion to Compel Forensic Examination to permit inspection of the Defendant’s cellular phone. Specifically, the Plaintiff sought iMessages and text messages for a 12-month period. The Defendant asserted that the temporal scope of the messages sought was too broad, the messages could be obtained from other sources, and the examination of the phone for such a long time period was a “mere fishing expedition”.
The Court directed that the forensic examination proceed with an agreed upon independent expert to examine a forensic image of the phone with the Plaintiff paying for the initial fees and costs for doing so. In such an image was not feasible, then the expert was to acquire as much data as possible from the device to allow for the recovery of the iMessages and text messages. The Court noted that the Defendant had been “obstructionist” in responding to Plaintiff’s initial discovery requests (which sought the above described messages), and expressed concern about the Defendant providing complete production of all requested documents in the litigation.
Nature of Case: Employment
Electronic Data Involved: Text Messages, iMessages, Cellular Phone
Key Insight: Plaintiffs sought sanctions against defendants for intentionally destroying the encryption keys needed to access its internal “shadow” accounting system used to track illicit bribe payments to secure construction contracts. The court imposed sanctions against defendants under Rule 37(e)(1) to allow the jury to consider evidence surround the destruction of the encryption keys but declined to impose a mandatory adverse inference requested by plaintiffs under Rule 37(e)(2) because the moving party did not demonstrate that defendant destroyed the electronic evidence “with the intent to deprive the other party of the information’s use in the litigation” – with the required intent to be established by clear and convincing evidence.
Nature of Case: Securities Fraud
Electronic Data Involved: Encryption Keys
Key Insight: Defendant filed a motion to compel and for sanctions regarding plaintiff’s failure to identify and produce Facebook account information. Plaintiff had deleted or deactivated and failed to disclose the existence of his multiple Facebook accounts. The court found that the ESI was not “spoliated” since plaintiff only deactivated, not deleted, his Facebook accounts. However, the court found plaintiff’s conduct “troubling” and ordered plaintiff to produce account data for each Facebook account he maintains or maintained, whether deactivated or not, and if defendant finds that substantive information was lost or destroyed, it could renew its motion for spoliation sanctions.
Nature of Case: Personal injury
Electronic Data Involved: Facebook
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