Deleted Data Recovery – Electronic Discovery Law

Gunter v. Alutiiq Advanced Security Solutions, LLC (D. Md. 2021)

Dec 28 2021

Key Insight: Defendant alleged that Plaintiff altered the wording of text messages and fabricated a series of text messages. Plaintiff also failed to produce relevant text message and falsely testified that such messages did not exists which was proved by a later forensic review. The Court had serious doubts regarding the text messages at issue. Plaintiff has no explanation for why his cellphone contains some text messages but not others. For these reasons, the Court ruled the text messages could not be used as evidence and the cost of the forensic review of the cell phone would be shifted to Plaintiff. However, the case would not be dismissed as there was not the “clear evidence necessary to conclude that Plaintiff fabricated the text messages.”

Nature of Case: Employment Discrimination

Electronic Data Involved: Text Messages

Case Summary

In re: CCA Recordings 2255 Litigation v. United States of America (D. Kan. 2021)

Jun 01 2021

Key Insight: Petitioners filed an action alleging the government violated their Sixth Amendment rights by recording their conversations and meetings with counsel while detained at Corrections Corporation of America (CCA). Petitioners sought spoliation sanctions against CCA, alleging an upgrade to the operating system where the recordings were saved wiped all metadata that would have shown if the US attorneys viewed the video recordings containing privileged communications. The court denied the motion, finding petitioners could not establish the threshold question: whether any metadata actually existed to show who logged in to view the recordings. “If there is no evidence that logging metadata ever existed, it could not have been intentionally destroyed to deprive petitioners of its use, and there can be no spoliation as it relates to that specific ESI relevant to petitioners’ claims.”

Nature of Case: Violation of Sixth Amendment Rights

Electronic Data Involved: Video Recordings

Case Summary

In re: 3M Combat Arms Earplug Prods. Liab. Litig. (N.D. Fla., Oct. 2020)

Key Insight: In their discovery requests, Defendants sought data concerning the Plaintiff’s use of social media and text messages concerning matters relevant to the litigation. After Plaintiff provided responses to these discovery requests, Defendants filed a Motion to Compel Plaintiff to submit to a forensic examination of his mobile phone. Defendants based their Motion on the arguments of ensuring complete collection of data from the mobile phone, and more specifically, complete data of Plaintiff’s use of social media messaging and text messaging with several parties on said mobile phone.

The Court denied Defendants’ Motion because it found that the electronic stored information (ESI) already produced was complete and/or sufficient due to the Plaintiff already working with an ESI expert to obtain the requested data, particularly from the mobile device. In short, the Defendants’ lacked a sufficient reason to believe that the data already produced was not complete.

Similarly, the Defendants failed to demonstrate that a forensic examination of the mobile device would produce relevant data showing that Plaintiff had a pattern or practice of deleting the above mentioned messages. Moreover, the data produced by the examination would only show that a message was deleted, not when or why the message(s) were deleted, the contents of the message(s), or a pattern of deleting messages. In sum, the Court found that the requested forensic examination would be “disproportionate to the slight importance” it would provide to the litigation.

Nature of Case: Product Liability

Electronic Data Involved: Cellular Phone, Text Messages, Social Media, Social Media Messages,

Case Summary

Tag:Deleted Data Recovery