This update addresses the following recent developments and court decisions involving e-discovery issues:
- A Southern District of New York decision denying plaintiff’s motion to hold the defendant in contempt for failing to produce native-format emails from his Gmail account pursuant to an arbitral subpoena, finding that the defendant had acted on a good-faith belief that obtaining native-format Gmail emails was not possible;
- A Supreme Court of Mississippi decision finding that the state failed to properly authenticate Facebook messages purportedly sent by the murderer but affirming the conviction after concluding their admission was harmless error; and
- An Arizona district court decision denying plaintiffs’ request for a Rule 30(b)(6) deposition at the start of discovery on the manner and methods used by defendants to store electronically stored information (“ESI”) because discovery should start with substantive inquiries, and beginning otherwise “puts the cart before the horse.”
1. In Sexton v. Lecavalier, 2014 WL 1395693 (S.D.N.Y. Apr. 11, 2014), U.S. District Judge Analisa Torres denied plaintiff’s motion to hold the defendant in contempt for failing to produce native-format emails from his Gmail account pursuant to an arbitral subpoena, finding that the defendant had acted on a good-faith belief that obtaining native-format Gmail emails was not possible.
The plaintiff sought relief from the court in an arbitral matter under Section 7 of the Federal Arbitration Act, 9 U.S.C. § 7, and Federal Rule of Civil Procedure 45, seeking an order holding the defendant in contempt for failing to comply with an arbitral tribunal’s non-party subpoena directing him to produce native-format emails relating to several businesses. Id. at *1. In response to the subpoena, the defendant had produced eleven non-native emails that he had forwarded from his Gmail account to his attorney. Id. After the plaintiff obtained a court order compelling the defendant to produce native-format emails, the defendant’s counsel wrote to the plaintiff that the defendant was unable to produce the emails in native format and attached an affidavit from defendant counsel’s IT director stating it was not possible to obtain native-format emails from Gmail because the “infrastructure . . . is managed and controlled by Google.” Id. (citation omitted).
The plaintiff then sought an order holding the defendant in contempt, arguing that native-format production was necessary because that format – unlike the defendant’s forwarded emails—“preserve[s] the properties and metadata associated with [the emails].” Id. at *2. In support of that motion, the plaintiff submitted a declaration describing in detail two methods for collecting native-format emails from a Gmail account: (i) downloading them to Microsoft Outlook; and (ii) using Gmail’s “show original” feature to save them as PDF files. Id. The plaintiff had not previously suggested those alternatives to the defendant. Id. at *3.
Judge Torres found that the defendant’s lack of access to Google’s servers “d[id] not absolve him of his obligation to produce documents in a reasonably usable format,” noting that “e-mails may contain metadata with a significant amount of evidentiary value.” Id. at *2 (citing Sekisui Am. Corp. v. Hart, 945 F.Supp.2d 494, 496 n.71)(Scheindlin, J.)). Further, the Judge noted that “[i]n contrast to simply forwarding e-mails as [the] [d]efendant did in this case, there are accepted e-discovery practices which better preserve the properties and metadata associated with native e-mail files.” Id. at *3. She explained that “functionally native format” emails collected using Microsoft Office or e-discovery software “generally suffice” for production purposes. Id.
Nevertheless, Judge Torres declined to hold the defendant in contempt for failing to produce native-format emails. Id. A court has the power to hold a party in civil contempt when “(1) there is a ‘clear and unambiguous’ court order; (2) there is clear and convincing proof of noncompliance; and (3) the party has not attempted to comply in a reasonably diligent manner.” Id. (citation omitted). Contempt is a “potent weapon, to which courts should not resort where there is a fair ground of doubt as to the wrongfulness of the defendant’s conduct.” Id. (quotations and citation omitted). In this case, Judge Torres found that contempt was not appropriate because the defendant had acted based on the “apparent good-faith belief that his Gmail e-mails cannot be produced natively.” Id. at *4. In addition, she noted that the “absence of a settled definition of native format in the context of e-mails stored with a third-party e-mail provider counsels against a finding of contempt.” Id. (citation omitted).
Judge Torres also denied defendant’s motion for sanctions against plaintiff, finding that plaintiff’s claim “was not without a colorable basis” and that the defendant had failed to demonstrate bad faith. Id.
Having denied both motions, the court admonished both parties for failing to work this matter out on their own:
“The parties should have resolved this matter without resorting to litigation in federal court. Instead of bringing this action, Plaintiff could have communicated his request for a functionally native format to Defendant or the Tribunal much earlier, rather than in the various motion papers submitted to this Court. Likewise, Defendant could have easily, and at little cost, provided the eleven e-mail documents in the requested format and obviated the need for this proceeding. Rather than sort out their technological differences, however, the parties consumed valuable judicial resources while speaking past one another and now seek to impose penalties on one another. This is not acceptable.” Id.
2. In Smith v. State of Mississippi, 2014 WL 1511303 (Miss. Apr. 17, 2014), the Supreme Court of Mississippi ruled that the state failed at trial to properly authenticate Facebook messages purportedly involving the murderer but affirmed the conviction after concluding that their admission was harmless error.
Scott Smith was convicted of murdering his wife’s 17-month old daughter from another marriage and sentenced to life in prison without the possibility of parole. Id. at *1. During the trial, the State had introduced two Facebook messages purportedly between Smith and his wife concerning their marriage, “the fights they were having, and problems with [the daughter] that Smith had, specifically with how much she cried.” Id. at *4. To authenticate the messages, the state’s attorney had asked Smith’s wife to “look at them and tell me if you can identify what they are.” Id. at *5. The trial court admitted the messages into evidence over Smith’s objection that the authentication was deficient under Mississippi Rule of Evidence (“M.R.E.”) 901(a), which ruling was affirmed on appeal. Id. The Supreme Court of Mississippi granted Smith’s petition for a writ of certiorari to consider the authentication issue. Id.
The Supreme Court explained that the authentication requirement under M.R.E. 901(a) “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Id. (citation omitted). The Court noted, however, that the authentication of social media poses “unique issues” because “[n]ot only can anyone create a profile and masquerade as another person, but such a risk is amplified when a person creates a real profile without the realization that third parties can ‘mine’ their personal data.” Id. at *6 (citation omitted). Because “[t]he potential for fabricating or tampering with electronically stored information on a social network [site] is high,” authenticating social media requires more than establishing the fact that a message “on its face purports to originate from a certain person’s social networking account.” Id. at *6-*7 (citation omitted). Examples of additional evidence indicating authorship include, inter alia, (i) testimony by a witness who saw the author compose the message, (ii) business records showing that the message originated from the author’s computer, (iii) personal information in the message indicating the author’s identity, or (iv) the sender responds to an exchange in such a manner as to indicate circumstantially that he is the author of the communication. Id.
In this case, the Supreme Court found that the State had failed to establish that the Facebook messages originated from Smith’s account or were actually written by him. Id. at *8. Indeed, the only evidence the State had presented to support authentication was the testimony of Smith’s wife and photographs of the messages showing “[Smith’s] name and [a] small, blurry photograph purporting to be Smith.” Id. at *7. Further, the Supreme Court noted that the information contained in the messages was known not only by Smith but also by “several of [his wife’s] friends and family members.” Id. Thus, the Court concluded that the trial court abused its discretion in admitting the Facebook messages in the absence of appropriate authentication. Nevertheless, the Supreme Court affirmed Smith’s conviction, finding that the admission of the Facebook messages was harmless error in light of the “overwhelming” evidence of Smith’s guilt. Id. at *9.
3. In Miller v. York Risk Services Group, 2014 WL 1456349 (D. Ariz. Apr. 15, 2014), U.S. District Judge John W. Sedwick denied plaintiffs’ request at the start of discovery for a Rule 30(b)(6) deposition regarding the manner and methods used by defendants to store electronically stored information (“ESI”) because discovery should start with substantive inquiries, and beginning otherwise “puts the cart before the horse.”
Former firefighters of the City of Phoenix sued an insurance company for RICO violations in wrongfully denying and delaying workers’ compensation benefits. Plaintiffs requested that the court order a Rule 30(b)(6) deposition to allow them to inquire into the manner and methods used by defendants to store and maintain ESI. Plaintiffs contended that the deposition would allow them to tailor their discovery requests to avoid potential disputes.
The court denied plaintiffs’ request. Judge Sedwick noted that plaintiffs provided “no support to the proposition that a Rule 30(b)(6) deposition should precede discovery requests seeking specific substantive information.” Id. at *2. Instead of avoiding disputes, the court noted, starting the discovery with the manner and methods used by defendants is likely to prolong discovery and increase disputes. The court stated that “[i]nstead of beginning with a deposition that address[es] nothing but process, discovery should start with inquiries that seek substantive information.” Id. If disputes arise regarding ESI, “it might then be appropriate to proceed with a Rule 30(b)(6) deposition of the type Plaintiffs seek.” Id. Proceeding otherwise, in the court’s view, “puts the cart before the horse.” Id.
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The legal framework in litigation for addressing the explosion in electronic communications has been in flux for a number of years. Sidley Austin LLP has established an “E-Discovery Task Force” to stay abreast of and advise clients on this shifting legal landscape. An inter-disciplinary group of more than 25 lawyers across all our domestic offices, the Task Force monitors and examines issues and developments in the law regarding electronic discovery. The Task Force works seamlessly with our firm’s Litigators who regularly defend and prosecute all types of litigation matters in trial and appellate courts, federal and state agencies, arbitrations, and mediations throughout the country. The co-chairs of the E-Discovery Task Force are: Alan C. Geolot (+1 202.736.8250, firstname.lastname@example.org), Colleen M. Kenney (+1 312.853.4166, email@example.com), and Jeffrey C. Sharer (+1 312.853.7028, firstname.lastname@example.org).
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