Mobile Data, Social Media, and Modern e-Discovery

One case that stands out is Clear-View Technologies, Inc. v. Rasnick (N.D. Cal. May 13, 2015). Clear-View was planning to bring a new product to market that enabled bars to better track their inventory. Meanwhile, a number of former Clear-View employees, one of whom had reached out to a Clear-View investor, were developing a similar product. Clear-View's CEO caught wind of the communication and sent the former employee a text message threatening possible litigation if the behavior continued. An official preservation letter followed sometime after. Two years after the initial text message, Clear-View brought suit against the group of employees. It subsequently came to light that the defendants failed to issue a legal hold or take any preservation actions, including retaining old mobile devices that included relevant messages, until the lawsuit was officially filed. It was also discovered that defendants erased a number of documents from their hard drives that pertained to the matter using deletion software, and as a result, plaintiffs filed a motion for spoliation sanctions.

The court concluded that the duty to preserve was triggered as soon as Clear-View's CEO sent the text message threatening possible litigation, dismissing the defendant's argument that the text was casual and therefore couldn't be construed as a legitimate litigation threat, and that the defendants' failure to preserve, coupled with their deployment of deletion software, made them culpable for the document spoliation. As a result, the court required the defendants to pay more than $200,000 for a full investigation into the missing documents and issued a permissive adverse inference instruction.

Key Takeaways

Better Safe Than Sorry

Many judges acknowledge that there is inherent ambiguity surrounding the preservation trigger. Still, there is no excuse for ignoring a preservation letter before taking steps to preserve. Most legal experts would advise litigants to take the safe route and begin preserving after any action or communication that might be viewed by the court as providing reasonable anticipation of litigation, including something as seemingly innocuous as a casual text message.

Account for Mobile Data

Regardless of whether the defendants intentionally decided not to preserve mobile messages or they simply didn't fully understand their legal obligations, the court was very clear in admonishing them for this monumental preservation oversight. It's now well established that preservation obligations extend to mobile data and courts' patience for ignorance is running very thin.

Tools and Awareness Programs Are Essential

This joins the growing list of cases where mobile data isn't just a peripheral discovery issue but a major element of the litigation. Companies that have seen their workforces increasingly rely on mobile devices for communication should ensure they have the proper technology to extract and translate mobile data and develop programs to increase employee awareness about the legal risks associated with mobile communications and when/how they should be used.

Social Media

Mobile data isn't the only emerging platform that is changing courts' expectations when it comes to discovery. According to the Pew Research Center, as of October 2015, 65% of all adults use social media, a ten-fold rise in the last decade. See, “Social Media Usage: 2005-2015.” With this many people creating data across social media platforms, it's no surprise that courts would view that data as being discoverable.

Just look at D.O.H. v Lake Cent. Sch. Corp., No. 2:11-cv-430 (N.D. Ind. Feb. 20, 2015). In 2011, a student claimed that bullies at his school physically and verbally harassed and threatened him every day for over a year. The student ended up suing the school and key administrators, alleging a number of legal issues, including negligence and civil rights violations.

The case involved several motions, including one from defendants to compel production of Facebook data that the plaintiff had created, including audio and video, as well as a privilege log for any records that weren't produced. The plaintiff produced a portion of his Facebook account but failed to turn over a privilege log, wall comments, messages, activity streams and photos. What was produced was heavily redacted.

In a subsequent deposition, the plaintiff admitted to deleting some information that was vulgar in nature and said that his previous attorney had instructed him on which portions of the account to produce in response to the order. After a motion for sanctions was filed, the plaintiff's second lawyer produced more than a thousand additional pages of Facebook and other social media documents. However, she redacted about 75% of the content and once again failed to produce a privilege log.

But following a standard sanctions analysis, the court found that the plaintiff had not acted in bad faith by deleting items from his account or failing to do a complete production and limited sanctions to just paying for the defendants' fees and expenses for the motion, rather than dismissing the case, which is what the defendant had sought.

Key Takeaways

Judges Have Raised the Bar On Discovery of Social Media

It goes without saying that attorneys have to be knowledgeable when working with social media and know how to fully respond to requests involving social media data. It's clear that judges won't hesitate to issue sanctions for discovery failures.

A Lesson to Litigants and Their Attorneys

This case should serve as a warning to all litigants to make sure their attorney knows how to perform discovery adequately, regardless of the type of data involved. Likewise, attorneys can't simply use their clients as a shield against incompetent or sloppy legal work. As the court suggested in this case, attorney failures can be remedied with malpractice suits.

Courts Recognize the Nuances Of Spoliation

The court was somewhat measured in only imposing monetary sanctions given the extent of deleted ESI and the defendants' request for a full case dismissal. Under the circumstances, the court couldn't find evidence that the spoliation was willful, while also recognizing the inherent complexities surrounding preservation of social media ESI.

Conclusion

If you're conducting e-discovery in the Information Age, you either learn how to handle Mobile Data, Social Media, and other emerging data platforms, or you may face sanctions or failed litigation.

Jim Gill is the content marketing manager at Exterro. He can be reached at [email protected].

It's easy to see how the Information Age has transformed the world once again. Old ways of doing things are no longer practical, and new guidelines for the way we conduct business are being formed in real-time. Keeping up with this changing landscape is vital in order to survive.

This holds true in the world of e-discovery. A recent review of e-discovery case law published in a white paper by Exterro reflects how courts are applying bedrock principles, such as reasonableness, cooperation, and transparency, in an e-discovery landscape transformed by mobile communication, social media, and other significant advances in technology.

Mobile Data

One case that stands out is Clear-View Technologies, Inc. v. Rasnick (N.D. Cal. May 13, 2015). Clear-View was planning to bring a new product to market that enabled bars to better track their inventory. Meanwhile, a number of former Clear-View employees, one of whom had reached out to a Clear-View investor, were developing a similar product. Clear-View's CEO caught wind of the communication and sent the former employee a text message threatening possible litigation if the behavior continued. An official preservation letter followed sometime after. Two years after the initial text message, Clear-View brought suit against the group of employees. It subsequently came to light that the defendants failed to issue a legal hold or take any preservation actions, including retaining old mobile devices that included relevant messages, until the lawsuit was officially filed. It was also discovered that defendants erased a number of documents from their hard drives that pertained to the matter using deletion software, and as a result, plaintiffs filed a motion for spoliation sanctions.

The court concluded that the duty to preserve was triggered as soon as Clear-View's CEO sent the text message threatening possible litigation, dismissing the defendant's argument that the text was casual and therefore couldn't be construed as a legitimate litigation threat, and that the defendants' failure to preserve, coupled with their deployment of deletion software, made them culpable for the document spoliation. As a result, the court required the defendants to pay more than $200,000 for a full investigation into the missing documents and issued a permissive adverse inference instruction.

Key Takeaways

Better Safe Than Sorry

Many judges acknowledge that there is inherent ambiguity surrounding the preservation trigger. Still, there is no excuse for ignoring a preservation letter before taking steps to preserve. Most legal experts would advise litigants to take the safe route and begin preserving after any action or communication that might be viewed by the court as providing reasonable anticipation of litigation, including something as seemingly innocuous as a casual text message.

Account for Mobile Data

Regardless of whether the defendants intentionally decided not to preserve mobile messages or they simply didn't fully understand their legal obligations, the court was very clear in admonishing them for this monumental preservation oversight. It's now well established that preservation obligations extend to mobile data and courts' patience for ignorance is running very thin.

Tools and Awareness Programs Are Essential

This joins the growing list of cases where mobile data isn't just a peripheral discovery issue but a major element of the litigation. Companies that have seen their workforces increasingly rely on mobile devices for communication should ensure they have the proper technology to extract and translate mobile data and develop programs to increase employee awareness about the legal risks associated with mobile communications and when/how they should be used.

Social Media

Mobile data isn't the only emerging platform that is changing courts' expectations when it comes to discovery. According to the Pew Research Center, as of October 2015, 65% of all adults use social media, a ten-fold rise in the last decade. See, “Social Media Usage: 2005-2015.” With this many people creating data across social media platforms, it's no surprise that courts would view that data as being discoverable.

Just look at D.O.H. v Lake Cent. Sch. Corp., No. 2:11-cv-430 (N.D. Ind. Feb. 20, 2015). In 2011, a student claimed that bullies at his school physically and verbally harassed and threatened him every day for over a year. The student ended up suing the school and key administrators, alleging a number of legal issues, including negligence and civil rights violations.

The case involved several motions, including one from defendants to compel production of Facebook data that the plaintiff had created, including audio and video, as well as a privilege log for any records that weren't produced. The plaintiff produced a portion of his Facebook account but failed to turn over a privilege log, wall comments, messages, activity streams and photos. What was produced was heavily redacted.

In a subsequent deposition, the plaintiff admitted to deleting some information that was vulgar in nature and said that his previous attorney had instructed him on which portions of the account to produce in response to the order. After a motion for sanctions was filed, the plaintiff's second lawyer produced more than a thousand additional pages of Facebook and other social media documents. However, she redacted about 75% of the content and once again failed to produce a privilege log.

But following a standard sanctions analysis, the court found that the plaintiff had not acted in bad faith by deleting items from his account or failing to do a complete production and limited sanctions to just paying for the defendants' fees and expenses for the motion, rather than dismissing the case, which is what the defendant had sought.

Key Takeaways

Judges Have Raised the Bar On Discovery of Social Media

It goes without saying that attorneys have to be knowledgeable when working with social media and know how to fully respond to requests involving social media data. It's clear that judges won't hesitate to issue sanctions for discovery failures.

A Lesson to Litigants and Their Attorneys

This case should serve as a warning to all litigants to make sure their attorney knows how to perform discovery adequately, regardless of the type of data involved. Likewise, attorneys can't simply use their clients as a shield against incompetent or sloppy legal work. As the court suggested in this case, attorney failures can be remedied with malpractice suits.

Courts Recognize the Nuances Of Spoliation

The court was somewhat measured in only imposing monetary sanctions given the extent of deleted ESI and the defendants' request for a full case dismissal. Under the circumstances, the court couldn't find evidence that the spoliation was willful, while also recognizing the inherent complexities surrounding preservation of social media ESI.

Conclusion

If you're conducting e-discovery in the Information Age, you either learn how to handle Mobile Data, Social Media, and other emerging data platforms, or you may face sanctions or failed litigation.

Jim Gill is the content marketing manager at Exterro. He can be reached at [email protected].