Electronic Discovery: A Level Playing Field?

In Hausman v. Holland America Line-USA, 2016 WL 51273 (2016), a federal judge vacated a $21.5 million jury verdict awarded to a plaintiff, finding that he had deleted e-mails sought by a discovery request, and hid one of his e-mail accounts. The plaintiff claimed that he suffered a traumatic brain injury when he was struck by an automatic sliding glass door on the defendants' ship. He alleged that the defendants knew the doors posed a danger because the doors had in the past closed “unexpectedly,” hitting both passengers and crew members. He asserted that, in spite of such knowledge, the defendants failed to fix the doors or warn passengers. The jury agreed, awarding the plaintiff $21.5 million, including $16.5 million in punitive damages.

Two weeks after the trial concluded, however, the plaintiff's former personal assistant, Amy Mizeur, informed the defendants that the plaintiff had deliberately sabotaged the defendants' pre-trial discovery efforts. At the hearing on the motion to vacate, Mizeur testified that the deleted e-mails indicated that the plaintiff exaggerated the severity of his injuries, and identified alternate causes for some of his injuries. She also testified that the plaintiff had a second personal e-mail account that he never disclosed to the defendants, from which he also deleted e-mails, and that he was convinced he would lose his lawsuit if the e-mails were disclosed to the defendants. Mizeur produced copies of e-mails that she was able to recover from her computer.

The court rejected the plaintiff's arguments that he had deleted the e-mails as part of his routine practice and not in any attempt to deceive the defendants, and that he “forgot” about his other personal e-mail account. Specifically, the court stated, “even if Plaintiff did have a routine practice of deleting his e-mails (which the court doubts), he was obligated to stop such practice with the onset of this litigation. It is black letter law that a party's duty to preserve evidence arises when he knows or reasonably should know that the evidence is relevant and when prejudice to an opposing party is foreseeable if the evidence is destroyed.”

The court held that the plaintiff's misconduct substantially interfered with the defendants' ability to fully and fairly present their defense at trial and stated, “[I]t is impossible to know what defendants would have discovered in the Yahoo account had it been disclosed, and likewise, it is impossible to know where those discoveries would have led ' . Clearly, such information is relevant to Defendants' defense.”

Spoliation of Social Media

In Painter v. Atwood, 2014 WL 3611636 (D. Nev. 2014), the federal district court affirmed a magistrat's order for an adverse inference following the plaintiff's destruction of social media evidence. There, the plaintiff alleged that the defendant had sexually assaulted her at work. The plaintiff and the defendant's wife were Facebook “friends” until shortly after the plaintiff filed suit. The defendant claimed that the relationship was consensual, and offered his wife's testimony that the plaintiff routinely commented on Facebook that she loved working with the defendant. The posts were not produced and were no longer available at trial.

Plaintiff's counsel conceded that she deleted the Facebook comments after she retained counsel, but argued that the Facebook posts were not relevant and that the plaintiff “is a 22-year-old girl who would not have known better than to delete her Facebook comments.” The magistrate rejected both arguments, finding that: 1) the lawsuit directly implicated the plaintiff's working conditions and, therefore, social media comments discussing her work and interaction with the defendant were “directly relevant”; and 2) the plaintiff, a 22-year-old woman, knew better than to delete her Facebook comments. The magistrate held that “[o]nce the plaintiff retained counsel, her counsel should have informed her of her duty to preserve evidence and, further, explained to the plaintiff the full extent of that obligation.” The magistrate concluded that the plaintiff's intentional deletion of Facebook content was done with “a culpable state of mind.” The district court found no error in the magistrate's findings or sanction.

In Gatto v. United Air Lines, Inc., 2013 U.S. Dist. LEXIS 41909 (D.N.J. 2013), the court granted the defendant's request for an adverse jury instruction based on the plaintiff's intentional deactivation of his Facebook account, which resulted in the loss of some information from that account. The plaintiff, a baggage handler, claimed that he was injured when he was unloading baggage. In response to the defendant's discovery requests targeting the plaintiff's social media accounts, the plaintiff provided signed authorizations to all of his social media and online accounts, except Facebook. Shortly thereafter, the plaintiff and defendants agreed that he would allow access to the Facebook account; he provided a shared password. The defendants accessed the account and gathered some information, but the plaintiff deactivated his Facebook account before the defendants completed their search. The deactivation resulted in permanent deletion of some information.

The defendants moved for an instruction stating that the jury may “draw an adverse inference against Plaintiff for failing to preserve his Facebook account and intentional destruction of evidence.” The plaintiff argued, however, that he deactivated his account because he thought he was being “hacked,” and claimed that he did not know deactivation would permanently delete the information. The court was not persuaded, stating, “Even if Plaintiff did not intend to permanently deprive Defendants of the information associated with his Facebook account, there is no dispute that Plaintiff intentionally deactivated the account.”

In Lester v. Allied Concrete Co, No. CL08-150 (Va. Cir. Ct. Sept. 01, 2011), aff'd, 736 S.E.2d 699, 2013), the plaintiff brought a personal injury action on his own behalf and a wrongful death suit as the administrator of his wife's estate against a truck driver and his employer. The Virginia Court of Appeals upheld sanctions imposed on the plaintiff and his counsel after discovering that they spoliated Facebook evidence: During discovery, defendants learned that the day after receiving discovery requests seeking production of screen print copies of all pages from the plaintiff's Facebook page, plaintiff's lawyer instructed his paralegal to make sure the plaintiff “cleaned up” his Facebook page because “[w]e do not want blow ups of other pics at trial ' !” In particular, counsel was concerned about photographs of the plaintiff wearing an “I [heart] hot moms” t-shirt, and holding a beer can with other young adults.

The paralegal helped the client deactivate the page and delete photos from his account. After the deletion, the plaintiff's attorney signed and served an answer to the discovery request, which included the plaintiff's statement, “I do not have a Facebook page on the date this is signed, April 15, 2009.” The pictures were later recovered by forensic experts.

The trial court gave an adverse inference instruction to the jury as a result of plaintiff's actions and also imposed sanctions in the amount of $542,000 on his lawyer and $180,000 on the plaintiff personally, to cover the defendant attorney's fees and costs incurred in connection with their misconduct.

The plaintiff and his lawyer did not appeal the award of sanctions for their misconduct to the Virginia Supreme Court. That court did, however, reject the defendant's argument that it was entitled to a new trial as a result of that misconduct, concluding that defendant received a fair trial on the merits because the trial court had mitigated any prejudice that the defendant may have suffered as a result of the misconduct.

Conclusion

A plaintiffs' ESI may be relevant to critical issues of liability, causation and damages, so in the defense client's interest it is necessary to obtain this information, either from public sources or through formal discovery.

Before resorting to formal discovery, defense counsel should search for and review publicly available social media ' such as Facebook, Twitter, Instagram, Buzzfeed, YouTube, MySpace ' for information about the plaintiff. If the plaintiff's social media is not publicly available, defense counsel should serve discovery requests that either require the production of social media postings or allow defense counsel access to the password to obtain that information. Obviously, defense counsel should refrain from attempting to gain information by “friending” an adverse party or witness, as most jurisdictions that have considered the question have found that it is unethical to obtain access under false pretenses. If circumstances warrant, defense counsel should strongly consider using a forensic expert to discover deleted data or alternate accounts for a given individual. Even if such information is found to be permanently deleted, the fact that plaintiff has deleted this information may be advantageous to the defense.

James H. Rotondo represents corporate clients in product liability, negligence, insurance coverage, and commercial litigation matters at Day Pitney. Sunita Paknikar is an Associate at the firm.