Texas Court of Appeals Approves Writ of Mandamus to Stop Facebook/Google Fishing Expedition

Last month, a three judge panel of the Twelfth Court of Appeals of Texas issued a decision, In re UV Logistics, LLC, No. 12-20-00196-CV, 2021 Tex. App. LEXIS 723 (Tex. App. Jan. 29, 2021), on a petition for a writ of mandamus vacating lower court orders directing the Defendants to produce data from his Facebook account; his Google account; and a smartphone itself for forensic examination. The Plaintiff in this personal injury suit alleged that a Defendant was distracted by his cell phone while he was driving, and later made false entries in a log tracking how long he had been driving. The Plaintiff was able to obtain Facebook posts that showed this Defendant was in a different location than his logbook indicated. She sought to create a "digital bread crumb trail" showing his location in the days before the accident. Id. at *9. The court order for the Facebook account covered a period from January 1, 2004 to the present. The accident took place in 2017.

The three judge panel rejected the Plaintiff's contention that the doctrine of unclean hands barred the Defendants from petitioning the Court to issue a mandamus order to correct overboard discovery orders. The Plaintiff argued that because a Defendant had deleted records after a preservation letter was received, and did not respond to other discovery requests, the doctrine of unclean hands should be invoked. The doctrine holds that a party should not be entitled to an equitable remedy that results from his own bad faith.

While the Court acknowledged that the Plaintiff had a need to track a Defendant's location in the days leading up to the accident, and to determine if he was using his smartphone when the accident took place, it found the Plaintiff's request overbroad as a matter of law. "Because the discovery requests could have been more narrowly tailored and all four requests were overly broad, we hold that Respondent abused his discretion by signing the July 30 and August 4 orders without limitation." Id. at *11-12. A court order allowing a fishing expedition was found to be an abuse of discretion. " [T]he orders require Franco and UVL to produce all Facebook, Google Account, and cell phone information including posts, likes, pictures, groups, ads, 'pokes', location history, login information, passwords, emails, etc., no matter how mundane or remote, regardless of the topic, content, or subject. Undoubtedly, much of the information that Gentry requested will be completely unrelated to the subject matter of her claims against Relators." Id. at *11.

The Court of Appeals conditionally issued the writ of mandamus, and gave the Judicial District Court of Upshur County, Texas 10 days to vacate its orders. The Plaintiff was ordered to pay all costs for the appeal.

W.D.N.C.: Motion for Dismissal Unreasonable Even Where Discovery Violations Run Rampant

Last week, Magistrate Judge Lauren F. Louis issued a decision, Marine Depot Int'l, Inc. v. James River Grp., Inc., No. 19-CV-24821, 2020 U.S. Dist. LEXIS 244385 (W.D.N.C. Dec. 30, 2020) granting in part and denying in part the Defendant's motion for sanctions and dismissal under Federal Rule of Civil Procedure Rule 37. The Plaintiff was previously fined for canceling a deposition without giving sufficient notice; producing documents in an unusable format; and not conducting expert disclosure correctly pursuant to Rule 26.

The Plaintiff's second amended disclosures failed to provide the value for some of the damages it requested for lost profits and lost opportunities as required by Rule 26(a) and the documentation on which those damages calculations are based as required by Rule 34. Judge Louis denied the Defendant's motion for dismissal since the Plaintiff was not found to have acted in bad faith, but ordered that the Plaintiff be precluded from using evidence at trial of damages which are not described in its disclosures.

The Defendant also argued that the Plaintiff failed to search its computers and servers for relevant ESI, noting the absence in its production of communications about the purchase of a company. The Plaintiff's suit alleges breach of contract for the Defendant's failure to purchase the company. The Plaintiff countered that all documents relating to this company were saved on web-based applications (mainly email accounts) pursuant to James River Group's own policy. The Court denied the motion for sanctions on this basis since Rule 34 does not state how a party is to locate responsive documents. ". . . the Court will not require Plaintiff to conduct additional discovery where Defendant has not provided any factual basis for its belief that the additional search of Plaintiff's server is necessary, or to rebut Plaintiff's sworn testimony that there are no relevant, non-duplicative documents stored there." Id. at *11-12.

Partial fees were awarded to the Defendant for its work on its motion for sanctions on the basis of the fact that the, "Plaintiff's discovery violations ran rampant" and a new discovery violation was uncovered at the hearing. However, the Defendant's full fees were not awarded because it sought dismissal which was "an unreasonable expectation here", and the time incurred [67.4 hours] was not reasonable. Id. at *13-14. Judge Louis did not give much weight to the Plaintiff's ability to pay because of its repeated failure to meet its discovery obligations.

New York Appellate Division: No Dismissal for Loss of ESI Stored for 7 Years in a Safe

Last week, the Fourth Judicial Department of the Appellate Division of the New York State Supreme Court issued a decision, Miller v. Miller, No. 761 CA 20-00203, 2020 N.Y. App. Div. LEXIS 8153 (4th Dep't Dec. 23, 2020), ruling on the Defendant's appeal of an order denying its motion for summary judgment on some claims in the complaint. The Defendant was the employer of a man who harassed the Plaintiff and her husband, after the Plaintiff ended her relationship with him. The husband also worked for the Defendant, Moog, Inc.. The Plaintiff's complaint listed causes of action for negligent supervision and retention, and breach of fiduciary duty for which summary judgment motions were denied.

The Defendant argued that the lower court abused its discretion in not dismissing the Plaintiff's complaint for spoliation of evidence. Email data for the accounts of the Plaintiff and her husband was stored on a hard drive that was later found not to function. While the Fourth Department acknowledged that a claim could be dismissed on the ground of spoliation even where there was not intentional destruction of evidence, it observed that prejudice would have to be shown that the negligent destruction of ESI deprived the Defendant of a means of proving her defense. No abuse of discretion was found:

"Although the relevant hard drives appear to have been negligently forgotten in a safe in the law firm of plaintiff's attorney for approximately seven years, there does not appear to be a dispute that the hard drives of plaintiff and her husband were imaged by a vendor for the purpose of preservation. There is no allegation or evidence that plaintiff or her counsel tampered with those hard drives. Further, defendant failed to offer any evidence to support its assertion that the absence of access to 'native electronic files' due to the loss of information on the inoperable hard drive substantially prejudiced, much less precluded, its ability to mount a defense in this action. The court therefore did not abuse its discretion in refusing to dismiss the amended complaint as a spoliation sanction." Id. at *9.