This update addresses the following recent developments and court decisions involving e-discovery issues:
- A Second Circuit decision finding that a social media page purportedly belonging to the defendant had not been properly authenticated and vacating the defendant’s conviction for unlawful transfer of false identification;
- A Western District of New York decision granting the plaintiff’s motion for sanctions based on the defendant’s admitted spoliation of evidence related to plaintiff’s accident at one of the defendant’s hotels;
- A Nebraska District Court ruling denying on proportionality grounds the Government’s motion to compel defendants’ production of electronically stored information (ESI) on discrimination claims and requests for accommodation; and
- An Arizona federal district court decision resolving competing sanctions claims, finding inadequate preservation by each party and spoliation in one instance but refusing to impose any penalties due to lack of evidence of bad faith or prejudice.
1. In United States v. Vayner, 2014 WL 4942227 (2d Cir. Oct. 3, 2014), the United States Court of Appeals for the Second Circuit vacated the defendant’s conviction for unlawful transfer of false identification after finding that the district court had abused its discretion in ruling that a social media page purportedly belonging to the defendant had been properly authenticated.
The defendant was accused of forging an infant’s birth certificate to help a friend avoid compulsory military service in his native Ukraine, which permits deferrals of such service for parents with children under three years old. Id. at *1. At trial, the friend—who testified under a cooperation agreement with the prosecution after earlier pleading guilty to a litany of charges—claimed that he received the birth certificate from an email address that he alleged belonged to the defendant. Id. To corroborate the friend’s testimony that the email address belonged to the defendant, the prosecution introduced a printout from the “Russian equivalent of Facebook” allegedly showing the defendant’s profile page. Id. The profile page contained information relating to the defendant and listed under “Contact Information” a Skype username that contained the same name (an alleged alias, “Azmadeuz”) as the email address in question. Id. at *2. The defendant objected to the evidence as improperly authenticated under Fed. R. Evid. 901, but the district court overruled the objection and admitted the profile page into evidence. Id. at *1. The defendant was convicted and then appealed. Id.
On appeal, the Court explained that the authentication standard under Fed. R. Evid. 901 requires the proponent to introduce evidence “sufficient to support a finding that the item is what the proponent claims it is.” Id. at *3 (citing Fed. R. Evid. 901(a)). The “type and quantum” of evidence required is “related to the purpose for which the evidence is offered.” Id. (citation omitted). For example, a document can be authenticated by “distinctive characteristics of the document itself.” Id. (citation omitted). Although the “bar for authentication of evidence is not particularly high,” there must “nonetheless be at least sufficient proof . . . so that a reasonable juror could find in favor of authenticity or identification.” Id. (citation and quotations omitted). Once a document is properly authenticated and admitted into evidence, the jury then decides its ultimate reliability. Id. at *4.
The Court held that the profile page had not been properly authenticated under Fed. R. Evid. 901. Id. The Court explained that the profile page contained information about the defendant, but that information was known to multiple people—all of whom could have created the page—and there was “no evidence that [the defendant] himself had created the page or was responsible for its contents.” Id. As such, the Court found that the district court had abused its discretion in admitting the profile page into evidence. Id. Finally, because the profile page was “vital to the [prosecution’s] case to prove that it was in fact [the defendant] who used the [email] address to send the fake birth certificate,” the Court found that admission of the evidence was not a harmless error and thus vacated the defendant’s conviction and remanded the case to the district court for a new trial. Id. at *6.
2. In Riley v. Marriott Int’l, Inc., 2014 WL 4794657 (W.D.N.Y. Sept. 25, 2014), Magistrate Judge Marian W. Payson of the United States District Court for the Western District of New York imposed sanctions on the defendant for its admitted spoliation of evidence relating to the plaintiff’s accident at one of the defendant’s hotels.
In this slip-and-fall case, the plaintiff asserted state-law claims for negligence against the defendant arising from the plaintiff’s accident at the defendant’s Lahaina, Hawaii hotel. Id. at *1. Specifically, the plaintiff alleged that on January 10, 2011, she slipped and fell on a wet floor in the defendant’s parking garage, sustaining injuries. Id. The plaintiff further alleged that the defendant acted negligently in failing to take reasonable precautions to prevent the plaintiff’s fall, such as removing the accumulated water, providing a non-slip service on the garage floor or providing warning signs. Id.
In the course of discovery, the plaintiff sought a copy of the surveillance videotape from the garage, which the defendant admitted included footage of the events before, during and after the plaintiff’s accident. Id. The plaintiff also sought a copy of the defendant’s “sweep logs,” which, pursuant to hotel policy, were to contain information on any cleaning of the garage floor. Id. at *2. The defendant produced only a seven-minute clip from the videotape that excluded the events before the plaintiff’s fall and after she was removed from the scene in a wheelchair, and the defendant did not produce any sweep logs. Id.
The plaintiff moved for spoliation sanctions. Id. at *3. Because the plaintiff did not identify the sanctions sought, the Magistrate Judge construed the motion as seeking the striking of the defendant’s answer or, in the alternative, an adverse inference instruction that the spoliated evidence would have been favorable to the plaintiff’s case. Id. at * 7. In response, the defendant did not dispute that the missing evidence had existed or that the defendant had a duty to preserve such evidence and did not explain why the evidence had been destroyed. Id. at *3. Rather, the defendant’s sole contention as to sanctions was that the plaintiff had failed to demonstrate prejudice as a result of the spoliation. Id.
Magistrate Judge Payson began by noting that the court’s authority to issue spoliation sanctions is based on its inherent power to control the judicial process and on Fed. R. Civ. P. 37. Id. at *3, *5 (citations omitted). A party bringing a motion for spoliation must demonstrate that (i) “the party charged with destroying the evidence had an obligation to preserve it,” (ii) the evidence was destroyed with a “culpable state of mind,” and (iii) the destroyed evidence was “relevant to the party’s claim or defense.” Id. at *3 (citations omitted). In addition, “[a]lthough a finding that the moving party has been prejudiced is not a prerequisite to the imposition of sanctions,” before awarding “more severe sanctions—such as dismissal, preclusion, of the imposition of an adverse inference—the court must consider . . . whether the innocent party has suffered prejudice as a result of the loss of [relevant] evidence.” Id. at *5 (internal quotes and citations omitted).
The Magistrate Judge determined that spoliation sanctions were appropriate in this case but held that the striking of the defendant’s answer was “too drastic a remedy.” Id. at *6. In finding spoliation, the Magistrate Judge noted that the defendant had admitted that it had a duty to preserve the evidence. Id. at *3. She also found that the evidence would have been relevant to the plaintiff’s claims, id. at *6, and held that the defendant had acted in bad faith based on its failure to explain the destruction of the evidence and the fact that the destruction occurred when the defendant admittedly was under a duty to preserve the evidence. Id. at *4. Finally, the Magistrate Judge ruled that the destruction of the evidence had prejudiced the defendant, explaining that the defendant’s “failure to explain the circumstances of the destruction of the evidence . . . permit[s] an inference that the missing evidence was unfavorable to [the defendant].” Id. at *6 (citation omitted). Accordingly, the Magistrate Judge granted the plaintiff’s motion for sanctions and awarded an adverse inference instruction. Id. at *7.
3. In United States v. University of Nebraska at Kearney, 2014 WL 4215381 (D. Neb. Aug. 25, 2014), Magistrate Judge Cheryl R. Zwart denied on proportionality grounds the government’s motion to compel defendants’ production of ESI regarding discrimination claims and requests for accommodation.
The United States filed a complaint against the University of Nebraska at Kearney and individual defendants for alleged violations of the Fair Housing Act by prohibiting or hindering students from living in university housing with emotional assistance animals. Defendants produced hard copies of documents relating to all alleged acts of housing discrimination involving emotional assistance animals but objected to the scope of the United States’ request for electronic documents and provided no electronic files. Id. at *1. The defendants argued that the government’s requests would require the defendant to produce ESI for every person with a disability seeking accommodation, as opposed to the much smaller universe of housing-related accommodation requests. The defendants proposed a narrower set of search terms, but the government claimed that the narrower terms would not identify documents relevant to its claims. The government did not deny defendants’ representations regarding the scope of the government’s requests but explained that documents on all forms of accommodation requests were relevant and that any distinction among accommodation requests was “an artificial one.” Id. at *2. Instead, the government proposed that the defendants simply produce all the requested documents subject to a clawback provision. The defendants resisted, and the government filed a motion to compel. Id. at *3.
The Magistrate Judge denied the government’s motion to compel, largely on proportionality grounds. She cited the proportionality provisions of Fed. R. Civ. P. 26(c)(2)(C) and stated that the proportionality test “is highly useful when addressing the scope, costs and burdens of electronic information discovery to resolve electronic discovery disputes.” Id. at *4.
Turning to the facts of this case, the Magistrate Judge pointed out that the government sought to obtain every electronic document that mentions any allegation of discrimination or any accommodation requested, whether or not the document related to the government’s claims. In the Magistrate Judge’s view, such a request was, “on its face, overly broad, not ‘reasonably calculated to lead to the discovery of admissible evidence,’ and inconsistent with the goal of securing ‘the just, speedy, and inexpensive determination’ of this case.” Id. at *5 (citations omitted; emphasis in original). The Magistrate Judge noted that case law on discrimination cases allowed the government to allege a practice or pattern of discrimination to prove its case with evidence of a defendant’s other discriminatory actions, but stated that the “scope of discovery is not limitless” and cited a series of cases limiting discovery to the discriminatory conduct charged. Id. at *4.
Second, the Magistrate Judge found that the costs associated with the additional production outweighed the benefits. Defendants expended approximately $122,000 to produce the hard-copy documents and objected to the additional production, which it estimated would cost an additional $150,000. The government’s investigation had identified only two instances in which the defendants had denied requests for emotional assistance animals. Id. at *5. “Having considered the issues actually being litigated in this case,” stated the Magistrate Judge, “the court finds the additional cost of the government’s proposed additional ESI will far outweigh what could be gained by requiring wholesale retrieval, review and production of that discovery.” Id.
Third, Magistrate Judge Zwart rejected the government’s proposal that all documents be produced subject to clawback. Such production would implicate not only the University’s interests but also the privacy interests for all students that have raised discrimination concerns or made accommodation requests. In addition, the clawback proposal would not help, as the University would still have to review all documents prior to production to remove identifying student information. Id. at *6.
Addressing the government’s contention that expansive terms were necessary to ensure “a complete set of documents,” the Magistrate Judge noted that ESI is only one discovery tool among many and “should not be deemed a replacement for interrogatories, production requests, requests for admissions and depositions, and it should not be ordered solely as a method to confirm the opposing party’s discovery request is complete.” Id. Magistrate Judge Zwart permitted the government to proceed by issuing “[s]tandard document production requests, interrogatories, and depositions.” Id. at *7.
4. In Vicente v. City of Prescott, 2014 WL 3894131 (D. Ariz. Aug. 8, 2014), U. S. District Judge David G. Campbell resolved competing sanctions claims, finding inadequate preservation by each party and spoliation in one instance but refusing to impose any penalties due to lack of evidence of bad faith or prejudice.
This case involved various federal and state claims relating to employment actions taken against a city firefighter. Id. at *1-*2. The court entered summary judgment for defendants on First Amendment and Section 1983 claims, but refused to dismiss a defamation claim against various City defendants. Id. at *3.
The Court also addressed plaintiffs’ partial summary judgment motion seeking the spoliation-related sanction of “striking Defendants’ answer,” which the court noted would “effectively result in a default judgment being entered.” Id. at *8, *12. The Court reviewed the plaintiffs’ claims regarding “nine specific categories of allegedly lost evidence,” id. at*9, and found that the plaintiffs made the necessary showing on only one of the nine categories of documents at issue. For the other eight categories, information was “either withheld on privilege grounds, [available but] not inspected at defense counsel’s office, or obtained from other defense-related sources.” Id. at * 12.
The remaining category consisted of one email that was “potentially highly relevant” to one of plaintiffs’ claims and “raise[d] a very legitimate spoliation concern.” Id. at *11. The Court cited this email as an example of defendants’ “plainly deficient” document preservation efforts. Id. Defendant City of Prescott did not notify its IT department to suspend its automatic email deletion practice, nor did it instruct the IT department to assist custodians in collecting and preserving relevant emails, or provide assistance in doing so through the City’s legal department. Id. Notwithstanding this finding, the Court refused to grant plaintiffs’ requested sanction of striking Defendants’ answer, because “case-dispositive sanctions such as default judgment or dismissing a case pursuant to a court’s inherent power” require “a finding of bad faith,” which plaintiffs failed to show. Id. at *12 (internal quotation marks and citations omitted). Additionally, Judge Campbell noted that plaintiffs presented much evidence on the issue raised in the one lost email, such that “the Court cannot conclude that the loss of one email . . . constitutes significant prejudice.” The Court concluded that “Plaintiffs have not shown they are entitled to substantial sanctions, particularly the sanction of default judgment.” Id.
Judge Campbell also denied defendants’ cross-motion for sanctions for plaintiffs’ destruction of various records. The Court concluded that plaintiffs’ preservation efforts had also been inadequate, but declined to impose sanctions because the records at issue either were not relevant to the claims that survived summary judgment, or because defendants failed to demonstrate that plaintiffs’ conduct prejudiced defendants. Id. at *14-*15.
Each party sought attorneys’ fees in connection with its motion. After stating that both sides had engaged in inadequate preservation, the Court noted it would be a major undertaking to try to determine the amount of fees expended by the parties in an effort to pursue the spoliated evidence. Id. at *15. The Court deferred ruling on these fee requests until after trial and stated it would use the knowledge gained during the trial to resolve the issue if pursued by one or both of the parties. Id.
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