A multi-part update on the discovery challenges posed by the proliferation and popularity of smartphones and other mobile devices
In “Data on the Move,” we discussed new usage data, new evidence of evidence, and new technology news related to mobile devices in eDiscovery. In this Part, we begin our review of recent mobile device cases.
Over the past few years, the frequency with which cases have had to address mobile device issues has steadily increased. From preservation obligations, to proportionality challenges, to privacy concerns, mobile devices have become a discovery battleground. In this Part, and in Parts to come, we will review an assortment of these cases, in chronological order, to see what additional guidance can be gleaned from them.
In Shaffer v. Gaither, No. 5:14-cv-00106-MOC-DSC (W.D.N.C. Sep. 1, 2016), the defendant filed a Motion to Dismiss, seeking dismissal “as a sanction for plaintiff’s failure to preserve electronically stored data, to wit, sexually suggestive text messages allegedly sent by plaintiff to a married third-party paramour, which defendant contends are critical to his defense.” It was undisputed that the text messages had been lost when the plaintiff’s phone was dropped, damaged, and turned in for a replacement. The court concluded this occurred well after a duty to preserve the messages had already arisen:
The problem in this case is not that the phone was destroyed, but that the texts were not preserved well before May 2014. . . .
Likewise, plaintiff and her counsel failed to take reasonable steps to preserve those texts as they apparently resided only on plaintiff’s phone. Once it is clear that a litigant has ESI that is relevant to reasonably anticipated litigation, steps should be taken to preserve that material, such as printing out the texts, making an electronic copy of such texts, cloning the phone, or even taking possession of the phone and instructing the client to simply get another one.
At this point, the court cannot conclude that plaintiff acted with an intent to deprive defendant of the ESI under Rule 37(e)(2); thus, spoliation does not yet come into play. Instead, the court’s task is to craft an Order that cures the prejudice resulting from the loss. [emphasis added]
Since the primary source was gone and carriers don’t store the contents of text messages, the only avenues left to the defendant were to seek the recipient’s copies through a third-party subpoena and to question the two of them about them contents of the communications. The court denied the request for dismissal but allowed the presentation of evidence about the loss, and the court reserved the right to add a spoliation jury instruction after hearing the evidence – and to reconsider dismissal if evidence of intentionality was uncovered.
In First Niagara Risk Mgt., Inc. v. Folino, 317 F.R.D. 23 (E.D. Pa. Aug. 11, 2016), the plaintiff former employer sought to compel searches of the defendant former employee’s electronic devices for relevant text messages and emails, and the Defendant opposed this request on several grounds, including its disproportionate burden. In addressing this opposition, the Court provided a factor-by-factor proportionality analysis using the updated list of factors in amended Federal Rule of Civil Procedure 26:
To analyze his defense we again use the factors from the recently-amended Rule 26. The issues at stake are of grave importance to First Niagara, who has allegedly uncovered a plan by one of its top executives to start a competing business and employing former First Niagara employees. The first factor therefore weighs in favor of granting First Niagara’s motion. The amount in controversy is unknown at this time, so the second factor weighs in favor of Folino, who avers that unknown damages cannot justify exorbitant discovery requests. Folino has access to the information on his emails and text messages while First Niagara does not, so the third factor weights in favor of First Niagara. The parties’ resources weigh in favor of neither party because, while First Niagara is a corporation and Folino is an individual, his complaints about costs ring hollow from someone who just sold two companies for over $5 million. The importance of discovery in resolving the issues in this case weighs heavily in favor of First Niagara, who needs to conduct broad discovery to uncover the scope of Folino’s alleged misdeeds. Finally, as to the sixth factor, the burden or expense of discovery for Folino, which is substantial, does not outweigh the benefit of discovery for First Niagara, who, again, has uncovered evidence that one of its top executives may have started a competing company while under its employ. Weighing these factors makes clear that the potential harm First Niagara’s discovery requests may impose on Folino does not outweigh the presumption for disclosure of those requests. [emphasis added]
In Hespe v. City of Chicago, Case No. 13-C-7998 (N.D. Ill. Dec. 15, 2016), the defendant city sought access to directly search the plaintiff employee’s personal electronic devices itself, while the plaintiff claimed to have already produced all relevant materials from those devices (including thousands of text messages and other materials). In assessing the proportionality of the request, the Magistrate Judge accorded great weight to the burden the privacy and confidentiality violation would place on the plaintiff:
Rule 26(b)(2)(C)(iii) incorporates by reference Rule 26(b)(1), which, as Judge Mason explained, requires discovery to be “proportional to the needs of the case.” Judge Mason explained that defendants’ request to perform a forensic inspection of plaintiff’s electronic devices for ESI was not proportional to the needs of the case because plaintiff had turned over all the ESI defendants had requested, which was presumably all the ESI she possessed, and in any case “the burden and expense of inspecting plaintiff’s devices and online accounts likely outweigh any benefit because copies of the documents and communications are sufficient to defend [against] plaintiff’s claims in this discrimination case.” Moreover, Judge Mason explained, inspection of plaintiff’s electronic devices is not “proportional to the needs of this case” because any benefit the inspection might provide is “outweighed by plaintiff’s privacy and confidentiality interests.” [internal citations omitted; emphasis added]
In Shawe v. Elting, 157 A.3d 142 (Del. Feb 13, 2017), the Delaware Court of Chancery found that the plaintiff had “recklessly failed to safeguard his cell phone,” along with several other bad acts. On the basis of those acts, the Court of Chancery awarded the defendant over $7 million in fees and expenses, and the plaintiff appealed the sanctions award to the Supreme Court of Delaware. That court reviewed and affirmed the lower court’s findings and sanctions, including regarding the reckless failure to preserve the phone:
Despite the two litigation hold notices and specialized knowledge as the CEO of a company whose expertise is in document preservation and production, Shawe did not preserve his cell phone or laptop.
On November 22, 2014, just four days after the Court ordered an expedited trial, Shawe’s cell phone was allegedly damaged by his niece. According to Shawe, while he and his brother were in the other room, his niece dropped the phone in a plastic cup of Diet Coke. Shawe tried to revive it by drying it and charging it, but was unsuccessful. The next week, he gave his phone to his assistant, Joe Campbell, to try and fix it. Shawe did not remind Campbell about his need to preserve the phone due to the litigation hold notices or outstanding discovery requests. Campbell’s only qualification for the task was that his own phone fell into a toilet once and it worked after he let it dry.
Campbell made modest (unsuccessful) efforts to revive the phone and eventually put it in a desk drawer in his office. According to Campbell, sometime in December 2014, he opened the drawer containing Shawe’s phone and noticed rat droppings in the drawer. In a “visceral reaction,” he tossed the contents of the drawer including the phone into the garbage. Campbell had been a paralegal for five years and had received both litigation hold notices. The Court of Chancery found this story “bizarre” and incredible. So do we. [emphasis added; internal footnote omitted]
Upcoming in this Series
In the next Part of this short Update Series, we will continue our review of new cases discussing mobile devices since we last covered this topic.