Federal Court Ruling on the Preservation of Text Messages

A U.S. District Court judge in Shaffer v. Gaither, 14-0106 (Sept. 1, 2016 W.D.N.C.) ruled this past September on the plaintiff's failure to preserve text messages on her phone. The court denied the defendant's motion to dismiss which was based on her failure to preserve ESI, that the court could not conclude was intentional. The messages on the phone were relevant to a defamation claim which alleges that the plaintiff's employer stated she was fired for having a sexual relationship with a married man. The plaintiff was an Assistant District Attorney and the person with whom she had the relationship was a defense attorney. The relationship itself was not denied, just the basis for her termination of employment.

The text messages on the plaintiff's phone were said to contain statements in which the plaintiff conceded the relationship was the reason for her dismissal. The plaintiff's phone was unavailable because she damaged it in a bathroom, and she turned it over to her insurer. The case is interesting because of what it shows about the recoverability of text messages and how a court will interpret the recently amended F.R.C.P. 37

The plaintiff's service provider could not produce copies of the text messages. It only kept records of when text messages were sent. There were no back-ups of the texts in cloud storage. Forensic techniques could not recover the body of the texts from the available SIM card. [Oddly, the court's decision does not indicate whether or not attempts were made to recover the phone from the insurer.]

The plaintiff's phone was broken more than a year after she had first threatened litigation. The court noted that FRCP 37 requires that steps be taken to preserve ESI when litigation is reasonably anticipated, but stated that dismissal should not the first resort. FRCP 37(e) requires courts to only take such action as necessary to cure the prejudice resulting from the lost ESI. It did not conclude the plaintiff's destruction of her phone was intentional. It set aside the question of whether any sanctions at all were necessary because other witnesses were available who had seen the text messages - more than just the plaintiff and a single recipient. The need for sanctions was to be determined after witness testimony before a jury on the content of the messages and the circumstances of the phone's loss.

The court's recommended preservation techniques for counsel consisted of, "printing out the texts, making an electronic copy of such texts, cloning the phone, or even taking possession of the phone and instructing the client to simply get another one."

Important S.D.N.Y. Ruling on Ordering the Use of TAR

This month, Magistrate Judge Andrew Peck of the S.D.N.Y. issued an important decision on the use of Technology Assisted Review, or predictive coding. In Hyles v. New York City, 10 Civ. 3119 (S.D.N.Y.), Judge Peck denied the plaintiff's application to force the defendant to use TAR even though he acknowledged that, "TAR is cheaper, more efficient and superior to keyword searching". As previously noted on this blog, Judge Peck issued Da Silva Moore v. Publicis Groupe & MSL Group, one of the first judicial decisions to approve the use of TAR. However in this recent decision, Judge Peck rules that Sedona Principle 6, which states that parties are best able to judge for themselves which technologies are best for the preservation and production of ESI, should supersede the obvious advantages of TAR.

It should be noted that this is an employment discrimination suit. The Review was staged, beginning first with only 9 custodians, and then if necessary, only expanding to an additional 6. Presumably very large amounts of ESI are not involved.

Judge Peck closed his decision by noting that it's possible as TAR becomes more widely used, it will be unreasonable for a party to decline to use it in the electronic discovery process.

Exterro's Simplified E-Discovery Case Law Database

There is now an interesting alternative to K&L Gates well-known database of electronic discovery case law, which was the tip of the night for June 14, 2015, Exterro has posted "The Simplified E-Discovery Case Law Library" , at http://www.exterro.com/case-law-library/ . Exterro profiles notable cases on the home page for the Library, and also provides subgroups of case on key topics:

Recent Case Law

New Data Types

Proportionality

Reasonableness

Exterro's case summaries are very short, and have an appealing format. The summaries begin with a one or two sentence description of why the decision is important. This is followed by an overview of the facts and then a list of the key rulings in the case.

Beware however - this is not the extensive resource that K&L Gates' database is. There are no summaries at all for key cases such as Zubulake v. UBS Warburg and Da Silva Moore v. Publicis Group . When you search for 'predictive coding' only the In re: Biomet M2a Hip Implant Prods. decision comes up. Nothing is returned for 'technology assisted review' at all. There does however seem to be a large number of profiles of decisions issued this year in the post-FRCP amendment period.