District of Minnesota Ruling on Motion to Compel Forensic Examination and Spoliation Sanctions for D

On Friday, Judge Steven Rau entered a decision,Trainer v. Cont'l Carbonic Prods., No. 16-cv-4335 (DSD/SER), 2018 U.S. Dist. LEXIS 100671 (D. Minn. June 15, 2018), denying the Defendant's Motion to Compel Discovery, for Spoliation Sanctions Including Dismissal of Action, and for Attorneys' Fees. The Defendant brought a wrongful termination suit against his employer, the Plaintiff, CCPI. CCPI alleged that Trainer deleted text messages and emails responsive to its discovery requests. The parties agreed to produce ESI as PDFs, but reserved the option to request the native format of files if necessary.

After producing some of his text messages as PDFs, Trainer deleted them in order to free up space on this phone. CCPI's Motion to Compel requested a forensic examination of Trainer's phone and that his deposition be taken for a second time. The text messages were sought to establish that a friendly relationship existed between Trainer and a co-worker (Travis Gilder) he complained made racist comments about his family. Trainer did not assert that the harassing statements made by the co-worker were sent in text messages. Making reference to Fed. R. Civ. P. 26(b)(1), Judge Rau held that, "because the messages are only marginally relevant and because Gilder already produced the messages, forensic imaging is not proportional to the needs of this case." Id. at 9.

CCPI also complained about emails produced by Trainer that had text cut off. The Plaintiff acknowledged that he deleted these emails after producing them. Although finding that the emails were relevant to the Plaintiff's mitigation of damages, Judge Rau ruled that, "[c]ompelling the production of emails from some other source, however, is ultimately not proportional to the needs of this case given their relatively low importance." Id. at 10-11. The issue could have been explored at Trainer's deposition.

The court did not find a basis for spoliation sanctions under Fed. R. Civ. P. 37(e). Trainer was not required to preserve text messages sent in 2015, even though he filed an EEOC complaint in April 2015, because he stated that he had not contemplated litigation until the end of the year, and did not realize that filing an EEOC complaint was a requirement for a lawsuit until October 2015. The opinion cites advisory committee notes for the 2015 amendment to Fed. R. Civ. P. 37(e) which indicate that courts should consider the sophistication of the parties with respect to data preservation. The deletion of messages sent after the suit was filed was merely found to be negligent because there was no evidence that Trainer intended to deprive CCPI from using them as evidence in the case, as is required for sanctions by Rule 37(e)(2)..

Sanctions were also not awarded for the deletion of emails produced by the Plaintiff with cut-off text because they were capable for being used for their intended purpose - showing that he was looking for a new job.

District of Delaware Decision - Adding New Search Terms Not Burdensome

Recently, Judge Richard Lioret issued a decision in Abbvie, Inc. v. Boehringer Ingelheim Int'l Gmbh, No. 17-cv-01065-MSG-RL, 2018 U.S. Dist. LEXIS 99812 (D. Del. June 14, 2018) ruling on the Defendants' Motion to Compel the Plaintiffs to run additional search terms. The Plaintiffs had already run 100 search terms and produced more than 8 million pages of documents. They objected to running 5 of the 10 additional search terms proposed by the Defendants because they were generic scientific terms. They countered by offering to search for the terms on a limited set of documents, and to search for the five terms within 20 words of a product name.

The Defendants contested the burdensomeness of the search by asserting that when used with a less restrictive AND connector (rather than WITHIN) the search terms would return about 45,000 documents. The Plaintiffs did not perform sampling to indicate that the number of search results would be greater than this amount.

Judge Lioret distinguished his decision from Inventio AG v. ThyssenKrupp Elevator Americas Corp., 662 F. Supp. 2d 375 (D.Del. 2009), in which the requesting party had the burden to prove that its additional searches would get unique information because it sought to add data from new custodians to its search. "Here, Boehringer has a right, under the district court's ESI rule, to have 10 search terms executed in addition to those chosen by AbbVie. Boehringer is not adding to the ample number of AbbVie custodians (50) previously fixed by agreement of the parties, or seeking to add search terms over and above those already allocated to the parties." Abbvie, 2018 U.S. Dist. LEXIS 99812, at * 5. The court ruled that the Defendants' additional search terms, using a WITHIN operator [the Defendants modified their request to only include documents where their proposed terms appeared within 200 words of the product name] were not more burdensome, or less likely than the Plaintiffs' self selected terms to get hits. The new search terms were chosen from the patents-in-suit and were "reasonably focused". Judge Lioret assumed that a search that would return 45,000 documents would be less than 10% of a prior production 8 million documents (neither of the parties submitted an estimate of the average page count of the documents) and would comply with Delaware Default Standard for Discovery § 5(b) which allows a requesting party to request 10 additional searches so long as they are not overboard. The new search terms are also consistent with Fed. R. Civ. Pro. 26(b)(1) as they are, "reasonably relevant to the claims and defenses in the case, and proportional to the needs of the case. The financial stakes are large, and both parties' resources are abundant. The burden of discovery does not outweigh its likely benefit." Id. at *7.

The court also allowed the Defendants to add more custodians to the search because it showed plausible reasons why the restriction of the search to 'inventor' custodians would miss relevant documents.

New Jersey Supreme Court Decision: Hot Pursuit with Find My iPhone

Today the Supreme Court of New Jersey issued a decision, State of New Jersey in the Interest of J.A., A-38-16 077383, 2018 N.J. LEXIS 713 (N.J. June 6, 2018), ruling on the admissibility of evidence procured after the warrantless entry by police into a suspect's home. This case concerns the use of Apple's "Find My iPhone" to recover the theft of a smartphone.

After a man's iPhone was stolen by a man who assaulted him at a bus stop, the police were able to determine that the phone was inside a home. Minutes after the phone's location was pinpointed it was powered down. After knocking, the police entered the home through an unlocked window on the ground floor. After conducting their own search, the police were unable to find the phone but the suspect’s brother, acting on his own initiative, located it and their mother subsequently gave the police written permission to search.

The Supreme Court overruled the Appellate Division and found that neither exigency nor the hot pursuit doctrine justified the officers’ warrantless entry into the home. It did however find that the brother's location of the stolen smartphone was non-state action. It was attenuated from the unlawful search, and did not require the Court to invoke the exclusionary rule.

The Appellate Division found that, "immediate action was required because once the phone was turned off, it could be moved and the GPS capabilities would not function.", d. at 16, and also determined that there was a danger the phone might be destroyed. The Supreme Court ruled that exigent circumstances did not exist because the police did not have any reason to believe the suspect would harm anyone inside the home or the officers, or destroy the iPhone. "While it is possible that defendant powered down the phone so that he could not be as easily traced, deactivating a tracking device on an electronic piece of evidence simply reduces the trackable evidence to an average piece of evidence; the mere presence of evidence in a home does not alone justify a warrantless entry." Id. at 29.