Tenth Circuit Sees A Keyword Fail In Social Media e-Discovery

Pahoua Xiong and her spine had a rough time on America's highways and byways in 2009 and 2010. In May 2009, she was merging onto Interstate 76 in Colorado when her vehicle collided with a Knight Transportation truck, and in September 2010 she was injured in a second car wreck.

Xiong sustained a compression fracture in her spine in the first accident with the Knight truck. In that collision, Xiong's car was forced into the median, causing it to flip multiple times, and her spine injury was exacerbated in the second mishap.

Xiong sued over both collisions, and in her suit against Knight Transportation, a jury found Knight 60% at fault and Xiong 40% at fault. Thus, the trial court reduced Xiong's $832,000 jury verdict to $499,200 before interest.

Knight Transportation moved for a new trial, arguing the company should have been allowed to present more evidence on the subsequent collision and that there was insufficient evidence for the damages award.

In addition, Knight argued that ' based on evidence found after the trial ' Xiong had committed fraud upon the court.

From where did this allegedly damning evidence come? It's 2016. Why, Facebook, of course.

Fraud on the Court?

Xiong and her friends and family testified at trial that her injuries limited her activities, and she claimed her injuries required her to take five to six Percocet tablets a day.

However, in addition to a drug test that revealed no opiates in her system ' as Percocet would have left ' after the trial, a paralegal employed by Knight Transportation's counsel found a photos on Xiong's Facebook page purporting to show Xiong clubbing, taking trips to Las Vegas, and smiling happily with friends at homes, restaurants, and at a wedding.

As a result, Knight Transportation's counsel hired a private investigator to follow Xiong and record her daily activities.

Despite the Facebook evidence, the district court denied Knight Transportation's motion for a new trial, holding the Facebook evidence could have been discovered before trial and that Knight offered no justification for its failure to develop the evidence earlier.

Knight appealed to the Tenth Circuit, but the company fared no better there, with the appellate court affirming the district court's denial of the motion for a new trial.

In affirming the denial of the new trial on the grounds of the newly discovered Facebook evidence, the Tenth Circuit conceded that the trucking company's claim it didn't know about the Facebook evidence was credible because Xiong's name was “misspelled” on her Facebook page. Thus, the keyword search for Xiong's name on Facebook came up empty.

However, the appellate court said that point offered Knight “cold comfort” because the company neglected to hire the private investigator until after the trial. In fact, the private investigator wasn't retained until after the Knight filed its motion to dismiss.

“The district judge found no reason for Knight's delay in having Xiong surveilled at any point before or during trial when it surely would have been relevant. We agree. Whether this omission was a tactical decision or oversight, it was hardly diligent. There was no abuse of discretion,” Circuit Judge Terrence O'Brien wrote for the three-judge Tenth Circuit panel.

Why Xiong Matters

If there were ever a case illustrating why keyword searching alone is a bad practice in e-discovery, Xiong is it. The misspelling of Pahoua Xiong's name on her Facebook page prevented Knight Transportation from discovering Xiong's alleged partying evidence until it was too late.

Moral of the story: Keywords serve a purpose in e-discovery, but using keywords alone can get you into trouble. Misspellings are one of the biggest reasons for recall failures in keyword searching, and Xiong illustrates why that's a problem.

The case shows the importance of thorough social media e-discovery early in a case. Had Knight performed extensive social media e-discovery early in the case, it would have found the evidence it needed and perhaps hired the gumshoe before it was too late.

Although the keyword search weakness in finding Xiong's misspelled Facebook name was unfortunate for Knight, one wonders why there was no narrowly tailored document request for the relevant Facebook data.

David Horrigan is e-discovery counsel and legal content director at kCura. An attorney, industry analyst, and award-winning journalist, he is a former reporter and assistant editor at The National Law Journal.