Cal. Ct. App.: Exclusion of Preservation Letter Not Reversible Error

Today, the Court of Appeal of California in Dao v. Bicycle Casino, No. B293679, 2019 Cal. App. Unpub. LEXIS 7307 (Cal. Ct. App. Oct. 31, 2019) unanimously affirmed the exclusion by the Superior Court of Los Angeles County of an evidence preservation letter sent by the Plaintiff to the Defendant. After the letter was received, but pursuant to preexisting plans, the Defendant destroyed a bathroom where the Plaintiff's injuries occurred during a building renovation. The Court concluded that even if the letter had been entered into evidence, the Defendant still would have prevailed, and so there was no reversible error. The preservation letter did not actually request that the bathroom be kept intact. The Plainitiff's expert testified that the type of tile used in the bathroom becomes as slippery as ice when it's wet. Dao was wearing flip flops with one and half inch heels . . .

The Plaintiff's motion to compel the digital negatives of photos that showed Dao on the floor after her accident was denied without prejudice. Photos that were produced were said to be of poor quality. The motion was not renewed. At a hearing on motions in limine, the trial court declined to issue an adverse inference instruction for spoliation for the destruction of digital negatives of security photos. The trial court did not allow testimony about the preservation letter or the Bicycle Casino's (TBC) general evidence protocols. However, Plaintiff's counsel was allowed to state in its closing that the failure to produce tiles from the bathroom or allow testing in it could give the jury a basis on which to view the evidence with distrust. The jury found that Bicycle Casino had not been negligent.

The decision states that, "the preservation letter showed TBC was on notice that Dao might sue TBC, and thus that the tile in the subject restroom would be very important evidence of liability. Thus, without the context the preservation letter provides, it was far less likely that the jury would 'distrust' the 'weaker evidence' TBC offered instead. Evidence regarding TBC's evidence preservation procedures might likewise have helped establish TBC had a reason to preserve tiles from the subject restroom after Dao's accident, even though she had not yet filed suit." Id. at *17. However, the Court concluded that there was already a basis for the jury to not trust sample tile provided by the Defendants and the testing by its expert which did not use the same type of footwear Dao wore.

The Court declined to rule on whether or not the failure to instruct on spoliation of the digital negatives was reversible error, since the Plaintiffs only raised this issue at the oral argument and not in their briefing.

D. Minn.: Fee-Shifting Sanctions for Failure to Reproduce Emails Buried in Initial Data Dump

Today, Magistrate Judge Katherine Menendez issued a decision, Darmer v. State Farm Fire & Cas. Co., No. 17-cv-4309-JRT-KMM, 2019 U.S. Dist. LEXIS 185862 (D. Minn. Oct. 28, 2019) granting in part and denying in part the Defendant's motion for sanctions under Fed. R. Civ. P. 37(b) and the court's inherent power for the Plaintiff's failure to produce documents detrimental to its claim.

The Court had earlier found an initial production by Darmer, which consisted of flash drives containing unorganized data with no Bates numbering to be a data dump and ordered him to review the documents for responsiveness and confidentiality, and re-produce the data in a more organized manner. The subsequent production omitted key contractual agreements relevant to the case. A subpoena on a third party obtained emails between Darmer and the third party in which the Plaintiff discouraged the third party from cooperating with State Farm's claim investigation. Darmer failed to produce these emails himself in the revised production. Counsel for the Defendant produced an Excel spreadsheet which indicated where some but not all of the missing emails were located on the flash drives with the initial unorganized production, and the missing contractual documents were located and produced.

Magistrate Menendez awarded payments of fees and expenses for re-taking depositions and for bringing the motions for sanction, but did not find that other sanctions were warranted. The failure to produce the contractual documents, which the facts showed Darmer knew existed and had in his possession, abused the discovery process in bad faith. Her decision further observes that, "The flash drives that Mr. Darmer and Mr. Beckmann originally produced were so unorganized and bloated with irrelevant information that a review would have been prohibitively and disproportionately expensive. This is why the Court took the somewhat unusual step of requiring the plaintiff's side to regenerate an entirely new substitute production when it granted State Farm's motion to compel. There is no excuse for burying unquestionably relevant and responsive communications in a massive and unusable data dump and then, when the effort was finally made to give the other side something akin to what the rules require, excluding those same emails." Id. at *23

Magistrate Menendez refused to excuse Darmer for his lack of technical skill in handling productions from web-based email. "It was unreasonable for Mr. Beckmann to turn over to his client the responsibility for searching through his ESI and that abdication contributed to the discovery failures in this case." Id. at *25. Counsel was required to make a reasonable inquiry into the completeness of the production.

The Court declined to order a forensic examination of Darmer's computers; strike claims in Darmer's complaint; or provide adverse inference instructions. The jury will hear about the discovery abuses and be allowed to draw its own inferences.

What about your iPhone is foregone?

This month, the Oregon Court of Appeals in State v. Pittman, 300 Or App 147 (Ore. Ct. App. Oct. 16, 2019) ruled that the Fifth Amendment did not prevent the police from requiring a defendant to disclose the passcode to her smartphone.   

gone conclusion. Given the latter conclusion, defendant’s challenge to the court’s ruling (as presented in her opening brief) is not viable, and we affirm.”. Id. at 149. 

The Court noted that SCOTUS has never applied the foregone conclusion doctrine to anything other than document productions.  State courts and federal appellate courts have applied the doctrine inconsistently.  Some courts have found that the passcode to an encrypted device must be a foregone conclusion; others that a defendant’s knowledge of the passcode must be foregone; and still others that the contents must be foregone. 

The Oregon Court of Appeals ruled that only the knowledge of the passcode had to be a foregone conclusion.