Bundesdatenschutzgesetz Data

Yesterday, Judge Mazzant of the United States District Court for the Eastern District of Texas, in Zoch v. Daimler, 4:17-cv-578, 2017 U.S. Dist. LEXIS 185343 (E.D. Tex. Nov., 8, 2017) approved a motion to compel the production data from the German auto manufacturer, Daimler, A.G. in a products liability case.

The decision found that a motion to compel was not moot where the defendant had produced heavily redacted documents and failed to prepare a privilege log in accordance with FRCP 26(b). It further ruled that the German Federal Data Protection Act, the Bundesdatenschutzgesetz (BDSG) did not prevent the discovery of the evidenced requested by the defendants.

The BDSG is a blocking statute that limited the discovery of ""any information concerning the personal or material circumstances of an identified or identifiable individual (the data subject)." Mazzant found that several of the requests made by the plaintiff did not concern personal data, but that others did. Section 28 of the BDGS makes an exception for the disclosure of personal data in the public interest if the subject has no legitimate interest in the data being excluded. The Court did not find that the exception applies in this case.

The court then used the Societe Nationale analysis (which Judge Peck loves to discuss - see the Tip of the Night for October 18, 2016) in order to determine if the BDSG would need to yield to the discovery demands of American law.

1. The Importance of the Requested Discovery to the Litigation

The Court found that evidence on "comments, part change requests, defect notifications,letters, writings, e-mails, meeting minutes, analyses, internal remarks, and performance agreements" was compelling information.

2. Degree of Specificity of the Requests

The defendant conceded the plaintiff submitted specifically targeted requests.

3. Where Information Originated

The plaintiff conceded that the data originated outside of the United States.

4. Availability of Alternative Means of Securing Information

The Court seized on the fact that the defendants both stated that the information was protected by the BDSG and conversely also stated that is was available in the deposition testimony and redacted documents that were already available, in reaching its conclusion that alternative means did not exist.

5. Balancing of National Interests The Court reached its final decision on the motion to compel because of the nature of the data requested was related to business activities. ". . . despite Germany's interest in protecting such personal data, the quantity and context of the personal data at issue in this case mitigates these concerns. Here, Plaintiff's requests seek part change requests, defect notifications, meeting minutes, performance agreements, e-mails and writings regarding comments and remarks concerning the seat in question, and names of persons with knowledge of relevant facts." It determined that its protective order was sufficient to protect the confidentiality of the data, and Federal Rule of Evidence 403 would be an adequate means of preventing the admission of irrelevant or prejudicial evidence.

The court ordered documents to be produced in unredacted form, and a list of persons with relevant knowledge to be disclosed.

Can Social Media Evidence be Self-Authenticating?

As noted in the Tip of the Night for December 16, 2016, in December 2017 Federal Rule of Evidence 902 will be amended so that documentation generated by computer can be considered self-authenticating. There has been some speculation that social media evidence may be regarded as self-authenticating. In United States v. Browne, 834 F.3d 403 (3d Cir. 2016), the Third Circuit ruled that Facebook chats that a defendant convicted of child pornography and sexual offenses exchanged with with minors were not self-authenticating.

In this case Facebook chat logs were entered into evidence with a certificate of authenticity. The certifying custodian stated that the records were kept by Facebook, "in the course of regularly conducted activity as a regular practice." The government argued that the records were authenticated under FRE 902(11), as "Certified Domestic Records of a Regularly Conducted Activity. The Third Circuit decided that this was not the case.

The court found that social media evidence has to be subjected to a relevance assessment prior to admission. The jury must be able to find by a preponderance of the evidence that the defendants and his victims authored the messages.

The court also found that the Facebook records lacked sufficient indicia of reliability - the records custodian can't rely on the substantive contents of the communications. It can only confirm that communications took place between particular accounts at a particular time. The opinion states that, "Government's position would mean that all electronic information whose storage or transmission could be verified by a third-party service provider would be exempt from the hearsay rules."

The court did find that the messages were admissible because there was more than enough evidence to link the defendant to the chats. Minors involved in communications with the defendant testified about their communications using Facebook. DHS agents confirmed that messages were received from Facebook.

Sedona Conference Primer on Federal Rule of Civil Procedure 34

The Sedona Conference has published the preliminary version of its primer on Federal Rule of Civil Procedure Rule No. 34. Here's a brief summary of the contents of this primer.

I. 2015 Amendments Designed to Encourage the Just, Speedy and Inexpensive Determination of Each Action - Addresses Rule 34 on these bases:

A. Overly Board Discovery Requests.

B. Overuse of Boilerplate Objections

C. Responses that don't indicate what objections withheld documents were withheld for.

D. Responses that don't indicate when production would begin and end.

II. Rule 34 Amendments

A. Request for Production must be responded within 30 days if they take place before the Rule 26(f) conference, or if not, 30 days after the conference.

B. Responses must state the basis of objections with specificity.

III. Practice Pointers

A. Party Conferences

1. Early Discovery Conference must address:

a. Location of Data and Systems.

b. What data is in possession, custody or control of a party.

c. Whether or not ESI will be produced in phases.

d. Agreement on how to handle privileged documents.

e. Identification of claims and defenses.

2. Rule 34 Discovery Requests Take Place 21 Days after the service of the Complaint.

B. Requests for Production

1. Blank requests for any and all documents should be avoided.

2. Individual request should be well tailored, limited to the claims and defenses involved in the case, and describe with particularity each item to be produced.

C. Responses to Requests for Production

1. A shorter time to respond to RFPs may be stipulated to or order by the court.

2. General objections should only be made if they apply to all document requests.

3. The parties must state that they are withholding because of an objection, or state the scope of production they are willing to make.

D. Court Involvement

1. Courts are reluctant to strike discovery requests in their entirety. Courts may use informal conferences to resolve discovery disputes as suggest in FRCP 16(b).

E. Requesting and Responding Obligations under FRCP 26(g)

1. Rule 26(g) states that parties have to certify that their requests, responses, and objections are consistent with the Rules, and not interposed for any improper purpose.