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S.D. Cal. Issues Rule 37 Sanctions for Incomplete Text Massage Production

On Friday, Judge Jill Burkhardt issued a decision, Andreoli v.  Youngevity Int’l., No. 16-cv-02922-BTM-JLB, 2019 U.S. Dist. LEXIS 100298 (S.D. Cal. June 14, 2019) granting in part and denying in part the defendants’ Rule 37(b) motion for sanctions.    The defendants’ motion concerned the plaintiff’s incomplete production of text messages, including the omission of a custodian field.  

The Court previously found that the metadata for the headers from text messages was unreliable and faulted the plaintiff for imaging cell phones other than its own for the text message production. 

The production of text messages with misleading metadata meant the production did not comply with a discovery order requiring that metadata be produced.   However Judge Burkhardt declined to rule against the plaintiff because its production was from cell phones not in its own possession, custody, or control. 

The discovery order was violated because the plaintiff fialed to conduct a diligent search to confirm its production was complete.  Specifically, the Court found that, “[p{laintiff's use of the Concurrent Case's deduped text message database is no excuse for his failure to produce his own text messages.”. Id. at *20. 

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