Motion to Compel in ERISA Case Denied - AETNA Lacks Integrated Email System

Last week, in Tyll v. Stanley Black & Decker Life Ins. Program, No. 3:17-cv-1591 (VAB), 2018 U.S. Dist. LEXIS 190977 (D. Conn. Nov. 8. 2018), Judge Victor A. Bolden denied the Plaintiff's motion to compel further electronic discovery and to produce a 30(b)(6) witness. Tyll brought an action to recover double indemnity benefits and ERISA benefits owed to her for the death of her husband in an airplane accident.

The Defendants' initial production consisted of an administrative record of only 1200 pages. The Plaintiff requested additional discovery, and the Court granted a motion to extend the discovery deadline. One of the defendants, Stanley, performed electronic searches requested by the Plaintiff, but the other defendant, AETNA did not comply with its requests.

Tyll's motion to compel asked the Court to order AETNA to perform a search of its entire email system using just three keywords: "Tyll", "basic annual earnings", and "800178", on the basis of the fact that the administrative record was incomplete. It also sought a 30(b)(6) deposition on how the ERISA administrative record was produced. In ERISA cases there is a presumption that judicial review is limited to the claims administrator's record, unless good cause can be shown that additional evidence should be considered.

Judge Bolden noted that Tyll waited four months before alleging that the record was insufficient. It waited until the eve of an extended discovery deadline to request additional electronic discovery. Far earlier in discovery the "[p]laintiff should have noticed the blank back pages, blurry screen shots, and other copying and scanning issues now at issue". Id. at *10-11. Tyll should have asked questions about AETNA's experts' workflow and compensation using written discovery; and it should have told the Court about deficiencies in the administrative record sooner. Tyll's discovery request was not relevant and proportional under Fed. R. Civ. P. 26(b)(1).

The Court agreed with AETNA that a search of its full email system would be unsupported and/or outside the administrative record. Examples submitted by Tyll of the insufficiency of the record would not be resolved by the proposed ESI search. Tyll failed to demonstrate that its proposed search would find AETNA's appeal and claim handling guidelines.

Judge Bolden also found that the 30(b)(6) deposition was not warranted AETNA had previously agreed to an extension of the discovery deadline and additional written discovery in exchange for Tyll's dropping its request for a 30(b)(6) deposition. Written discovery revealed the fact that AETNA had downloaded all documents stored in its electronic claims management system, and that "AETNA does not have an integrated email and/or instant message system and that individual e-mails and instant messages must be scanned into claim files." Id. at *16.

It's interesting that the Court failed to criticize a large insurer like AETNA for not being able to search through its custodians' email archives.

Brooklyn Court Invalidates Warrant to Search Smartphone for Harassing Messages

Last week, a court in Brooklyn issued a decision, People v. Russell, Index No. 1384/2018, 2018 N.Y. Misc. LEXIS 5028 (Sup. Ct. Kings County Oct. 31, 2018), granting a motion to controvert a search warrant that was used to search data on the Defendant's Samsung smartphone. Ayele Russell was charged with attempted murder in the second degree; aggravated harassment in the second degree; and related offenses. The warrant authorized a search of the phone for messages sent to harass the victim, and for the cell site location history at the time of the alleged attempted murder.

The warrant was used to collect, "information pertaining to, inter alia, the defendant's call logs, video data files, SMS messages and a time line of his usage for the period between February 8, 2018 and February 12, 2018." Id. at *3. The Defendant contended that it was overboard and failed to satisfy the particularity requirements of Fourth Amendment to the United States Constitution and section 12 of article 1 of the New York Constitution because it allowed for all data on the device to be searched. In his opinion, Justice Matthew J. D'Emic stressed the importance of the fact that the affidavit which a police officer submitted with the warrant merely stated that Russell sent the victim harassing text and WhatApp messages, and that the issuing judge did not consider any other evidence.

The Court found the warrant to be unconstitutional because of its failure to describe the items to be searched with particularity. The items to be seized must be specified by their relation to crimes a Defendant is charged with.

The warrant and the warrant application, "intended to include a directive that authorized law enforcement agents to seize any threats or harassing messages the defendant transmitted to the complainant. By characterizing the items subject to seizure as evidence of the offenses listed in the first paragraph of the warrant, the People embrace an impermissibly broad interpretation of the particularity requirement." Id. at *8-9. The first paragraph referred to criminal contempt and attempted coercion - offenses Russell was not charged with.

Justice D'Emic did however uphold the validity of the warrant with respect to, "a search for data mapping out the defendant's location for the period commencing when he met the complainant on February 11, 2018 through his arrest on February 12, 2018." Id. at *10.

New York Appellate Court Affirms Adverse Inference for Deletion of Email Message

This past December, the intermediate appellate court for New York State issued a short, but important decision, Douglas Elliman v. Tal, Index No. 650440/12, 2017 N.Y. App. Div. LEXIS 9300 (1st Dep't Dec. 28, 2017), affirming the decision of a lower court granting the Defendants' motion for adverse inference. The Plaintiff was precluded from presenting evidence contradicting the fact that it agreed to Tal's dual licensure with another real estate brokerage firm.

The lower court did not abuse its discretion is presuming that a single deleted email message was relevant. "The record demonstrates that plaintiff acted with gross negligence in destroying ESI not only after commencement of the action triggered a duty to preserve, but after defendant Tal's deposition, in which she referenced an email exchange in which she allegedly advised plaintiff that she had started working at Itzhaki Properties, and requested dual licensure". Id. at *1. Spoliation sanctions were warranted.

The lower court, the New York State Supreme Court for the County of New York, issued a one page handwritten decision. See, NYSCEF Doc. No. 190, Decision, Douglas Elliman, LLC v. Tal, Index No. 650440/12 (Sup. Ct. N.Y. County June 14, 2017). However the record of the oral argument on the motion makes clear that the ESI destruction was substantial. See, NYSCEF Doc. No. 191, Hr'g Tr., Douglas Elliman, LLC v. Tal, Index No. 650440/12 (Sup. Ct. N.Y. County June 14, 2017) The email in question could have been recovered from servers which were destroyed after the suit was filed. The Plaintiff presented an affidavit that the servers were restored and no missing emails were identified, however Justice Ellen Coin concluded that, "back-up tapes are not an adequate substitute for the Legacy Servers, as they do not completely reflect the information that should have been stored on the Legacy Servers." Id. at 12:26 - 13:5.

The gross negligence referenced by the Appellate Division was related to the absence of systematic process for implementing litigation holds. "While plaintiff's counsel maintains he instructed plaintiff, albeit in other words, to put a litigation hold on documents involving this matter, the absence of a general policy especially given the frequency of litigation in plaintiff's business is egregious." Id. at 11:15 - 11:25.