This Sidley Update addresses the following recent developments and court decisions involving e-discovery issues:
- An Eastern District of Louisiana case granting defendant tailored discovery of plaintiff’s Facebook records but denying defendant’s request that plaintiff be required to provide his Facebook log-in information and authorization to allow defendant to obtain plaintiff’s account information directly from Facebook;
- A Western District of Kentucky opinion granting plaintiffs’ motion to compel the production of electronically stored information (ESI) from the defendant’s wife’s cellular phone after a forensic report indicated that the phone may contain discoverable information;
- A Southern District of California ruling ordering plaintiff to pay the costs of reproducing emails with associated metadata in searchable text format after plaintiff ignored defendant’s request for production in such format and failed to meet and confer with defendant as required by their discovery plan; and
- A Central District of California case requiring defendant to produce payroll information in Excel format because production in such format had been specifically requested, was a reasonably usable form and would allow the plaintiff to search, sort and filter the data.
1. In Farley v. Callais & Sons LLC, 2015 WL 4730729 (E.D. La. Aug. 10, 2015), U.S. Magistrate Judge Michael B. North granted defendant tailored discovery of personal-injury plaintiff’s Facebook records, including all posts related to the accident in question, plaintiff’s alleged injuries and post-accident capabilities but denied defendant’s request that plaintiff be required to provide his Facebook log-in information and authorization to allow defendant to obtain the plaintiff’s account information directly from Facebook.
In this personal injury lawsuit, defendant filed a discovery motion to compel discovery of plaintiff’s Facebook records (i.e., social networking site or SNS records), seeking an order to compel plaintiff to produce all of his Facebook activity and records subsequent to the alleged incident, including plaintiff’s Facebook password and log-in information as well as a signed authorization to be provided to Facebook to provide independently all the requested materials. Id. at *1. Plaintiff opposed the motion.Id.
At the outset, the magistrate judge rejected defendant’s view that a “new, perhaps yet-to-be determined, set of discovery principles and rules” applied to discovery of social media. Id. Instead, the key issue was whether plaintiff’s Facebook information was relevant — i.e., reasonably calculated to lead to admissible evidence:
“Information on social networking sites is not entitled to special protection, but a discovery request seeking it nevertheless must meet Fed. R. Civ. P. 26’s requirement that it be tailored so that it appears reasonably calculated to lead to the discovery of admissible evidence.” Id. at *3 (citing Smith v. Hillshire Brands, 2014 WL 2804188 (D. Kan. June 20, 2014)(internal citations omitted)).
The magistrate judge reviewed defendant’s case support regarding SNS-related discovery and in the end rejected defendant’s claim that anything posted by a litigant on SNS is “fair game.” Farley, 2015 WL 4730729, at *2-*3. Instead, the magistrate judge pointed to alternative precedent finding that SNS information irrelevant to a case was not discoverable:
“Ordering [a party] to permit access to or produce complete copies of his social networking accounts would permit [the opposing party] to cast too wide a net and sanction an inquiry into scores of quasi-personal information that would be irrelevant and non-discoverable. [The opposing party] is no more entitled to such unfettered access to [the party’s] personal email and social networking communications than it is to rummage through the desk drawers and closets in [the party’s] home.” Id. (citing Smith, 2014 WL 2804188, at *5).
Although the magistrate judge rejected defendant’s blanket claim that all SNS information was discoverable, he nonetheless found that certain information on plaintiff’s Facebook account was relevant to the plaintiff’s personal injury claim and therefore ordered discovery of the following categories of information:
“1) postings by [plaintiff] that refer or relate to the accident in question;
2) postings that refer or relate to emotional distress that [plaintiff] alleges he suffered as a result of the accident and any treatment that he received therefor;
3) postings or photographs that refer or relate to alternative potential emotional stressors or that are inconsistent with the mental injuries he alleges here;
4) postings that refer or relate to physical injuries that [plaintiff] alleges he sustained as a result of the accident and any treatment that he received therefor;
5) postings that refer or relate to other, unrelated physical injuries suffered or sustained by [plaintiff]; and
6) postings or photograph[s] that reflect physical capabilities that are inconsistent with the injuries that [plaintiff] allegedly suffered as a result of the accident.” Id. at *4.
Magistrate Judge North also rejected defendant’s request requiring plaintiff to share log-in or password information with defendant or to require him to sign an authorization to allow defendant to seek this information directly from Facebook. Id. Instead, he stated that he was “fashioning both a remedy and a method of production” based on the steps set forth in Giachetto v. Patchogue-Medford Union Free School District, 293 F.R.D. 112 (E.D.N.Y. 2013) that was appropriate in this and other cases. First, the magistrate judge directed that plaintiff’s Facebook information be made immediately available to plaintiff’s counsel for counsel’s – and not plaintiff’s – review to determine whether any information was discoverable under the specified categories. Farley, 2015 WL 4730729, at *4. Second, the magistrate judge ordered plaintiff to execute a declaration under penalty of perjury “that he has provided to his counsel all SNS information (or access to it) requested by [defendant].” Id. at *5 (emphasis in original). Third, the magistrate judge ordered plaintiff’s counsel to preserve all SNS information requested by defendant, regardless of the extent of any actual production from that information, in the event of further litigation over the appropriateness or scope of plaintiff’s eventual production. Id. Finally, the magistrate judge stated that failure by plaintiff or its counsel to “comply with any of these directives may result in appropriate sanctions being levied under Rule 37.” Id.
The magistrate judge indicated that this case was “not a particularly complicated or unusual personal-injury case” and stated that the limits being placed on SNS discovery were “well-suited ... to protect both the rights of the Plaintiff to be shielded from overly intrusive and overbroad discovery as well as the rights of Defendant to discover relevant information germane to Plaintiff’s claims and its defenses against those claims.” Id.
2. In Brown Jordan International, Inc. v. Carmicle, 2015 WL 6142885 (W.D. Ky. Oct. 19, 2015), U.S. District Court Judge Greg N. Stivers granted plaintiffs’ motion to compel the production of ESI from the defendant’s wife’s cellular phone after a forensic report indicated that the phone may contain discoverable information.
Brown Jordan International, Inc., and various related entities (Brown Jordan) filed an action against Christopher Carmicle (Carmicle) in the U.S. District Court for the Southern District of Florida asserting numerous computer fraud and related claims, and Carmicle filed various claims against another Brown Jordan entity, which were all consolidated in the Southern District of Florida. Id.
During discovery, the parties entered into a Jointly Stipulated Order Setting Computer Forensic Investigation Protocol (the Protocol). Id. Pursuant the Protocol, Carmicle submitted his electronic devices and storage sites for forensic examination during discovery. Id. After a forensic review was performed on those devices and sites, Brown Jordan believed that the iPhone owned by Carmicle’s spouse, Rashna, may contain relevant information and served her with a subpoena requesting production of her iPhone. Id. at *2. Rashna Carmicle objected to the subpoena and refused to produce the iPhone. Id. After Brown Jordan and Rashna Carmicle were unable to come to an agreement on the forensic review of Rashna Carmicle’s iPhone, Brown Jordan moved to compel in the Western District of Kentucky, where the iPhone was located, arguing that a forensic examination report had shown that Rashna Carmicle’s iPhone contained Brown Jordan-related email messages. Id.
Reviewing the motion to compel, the court first set forth the governing standard, noting that parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense:
“‘Relevant material for the purpose of discovery will encompass any matter that may bear upon, or reasonably could lead to other matters that could bear upon, any issue that is or likely may be raised in the case. In other words, a request for discovery should be considered to be seeking relevant information if there is any possibility that the information sought may be relevant to the claim or defense of any party in the action. So long as the information sought appears reasonably calculated to lead to the discovery of admissible evidence, the information itself need not be admissible at trial.’” Id. (quoting Invesco Institutional (N.A.), Inc., v. Paas, 244 F.R.D. 374, 380 (W.D. Ky. 2007)).
The court considered various facts in deciding whether the information in the iPhone was relevant for discovery purposes: (1) Rashna Carmicle was married to a party in both related actions; (2) the underlying litigation involved claims relating to the improper access of computers and computer systems; (3) a forensic report indicated that Rashna Carmicle’s iPhone may contain discoverable information, finding that certain Brown Jordan-related data that does not exist elsewhere was found on an iTunes backup file of Rashna Carmicle’s iPhone; (4) and Christopher Carmicle had testified during a deposition that he may have used his wife’s iPhone. Brown Jordan Int’l, 2015 WL 6142885, at *3. According to the court, these facts were sufficient evidence to show that Rashna Carmicle’s iPhone may contain information relevant to the claims asserted in this litigation and that Brown Jordan had good cause to seek the ESI contained on the iPhone. Id.
Upon finding that Brown Jordan presented sufficient evidence, the court noted that the burden shifted to Rashna Carmicle “‘to establish that the material either does not come within the scope of relevance or is of such marginal relevance that the potential harm resulting from production outweighs the presumption in favor of broad disclosure.’” Id. (quoting Invesco, 244 F.R.D. at 380).
In objecting to the subpoena, Rashna Carmicle argued that (1) the information no longer existed on the iPhone; (2) the information contained on the iPhone would be duplicative of information that Brown Jordan already had; (3) producing the iPhone would be inconvenient; and (4) she did not have the opportunity to review the iPhone in order to assert applicable privileges. Brown Jordan Int’l, 2015 WL 6142885, at *3-*4. The court noted that the “issues of spoliation” had been raised in the litigation and rejected her claim that the forensic examination would be duplicative or unduly time-consuming (noting it could be completed in four hours or overnight). Id. at *4. Ultimately, the court did not find any of these reasons compelling enough to overcome Brown Jordan’s right to review the relevant information contained on the iPhone. Id. at *3-*4.
Accordingly, the court granted Brown Jordan’s motion to compel, finding that Brown Jordan had satisfied its burden to obtain production of Rashna Carmicle’s iPhone and that the evidence she had presented opposing production failed to meet her “heavy burden.” Id. at *4. In addition to ordering production of the iPhone, the court also set a schedule allowing Rashna Carmicle to review the data produced from her iPhone.
3. In Themis Bar Review, LLC, v. Kaplan, Inc., 2015 WL 3397877 (S.D. Ca. May 26, 2015), U.S. Magistrate Judge Barbara L. Major ordered plaintiff to pay the costs of reproducing emails with the associated metadata in searchable format after the plaintiff ignored defendant’s request for production in such format and failed to meet and confer with defendant as required by their discovery plan.
On August 8, 2014, defendant served document requests on plaintiff seeking documents on plaintiff’s pass rate advertising and data substantiating the pass rates identified in plaintiff’s advertising. Id. at *1. On January 9, 2015, plaintiff produced a CD-ROM containing spreadsheets reflecting plaintiff’s pass rate statistics by jurisdiction and the records of plaintiff’s students’ bar exam results with the percentage of plaintiff’s coursework that each student had completed. Id. at *2. The spreadsheets were produced as PDF copies of the electronic files, stripped of their filtering, sorting and searching capabilities. Id. Defendant subsequently emailed plaintiff requesting that the documents be produced as “image files” with “fully searchable message text also including the usual metadata,” and also native copies of the Excel files plaintiff had produced in PDF format. Id. Plaintiff ignored the request, refused to meet and confer with defendant and produced emails in non-searchable PDF documents. Id. at *2-*3. Plaintiff, however, did provide the Excel spreadsheets in native format, as requested. Id. at *3.
On May 12, 2015, although stating it was plaintiff’s responsibility, defendant offered to pay 50 percent of a vendor’s final invoice — up to a total of $8,200 — to produce the e-mails and attachments in the requested format. That same day, plaintiff’s counsel responded that it would produce the emails with metadata and searchable text only if defendant paid the full cost thereof. Id. Defendant subsequently sought an order from the court requiring plaintiff to reproduce the email documents with associated metadata and searchable text. Id.
In resolving the issue, the magistrate judge first looked to the May 27, 2014 Joint Discovery Plan (JDP) agreed to by both parties:
“In accordance with the Court’s May 27, 2014 Order Finding Early Neutral Evaluation Inappropriate, Directing Rule 26 Compliance, and Setting Case Management Conference … , the parties lodged a Joint Discovery Plan with chambers. The portion of the Joint Discovery Plan that is currently at issue states:
Responsive documents may be produced in PDF format, unless otherwise agreed between the parties.
If a party believes, on a case-by-case basis, that documents should be produced in a format other than native format, or that metadata should be produced, the parties collectively agree that they will meet and confer in good faith to discuss such alternative production arrangements.The parties have further agreed that they will meet and confer in good faith to ensure that the format of each party’s production is compatible with the technical requirements of the receiving party’s document management systems.” Id. at *5.
The magistrate judge recognized that the parties initially agreed that responsive documents could be produced in PDF format. Id. She stated that the parties realized, however, that certain documents may need to be produced with metadata or in a non-PDF format, and when such an issue arose, the magistrate judge indicated that the parties were required by the JDP to meet and confer in good faith. In the magistrate judge’s view, that obligation attached to defendant’s request to have the documents at issue produced in a non-PDF format. Id. The magistrate judge viewed plaintiff’s decision to ignore the issue and failure to meet and confer as requested by defendant to be a violation of the JDP. Id. at *6. For that reason, the magistrate judge granted defendant’s request for production of the emails with associated metadata in searchable format and required plaintiff to pay the reproduction costs. Id. In so ruling, the court stated:
“Had Plaintiff met and conferred with Defendant as required by the Joint Discovery Plan, the parties could have resolved this issue or sought assistance from the Court prior to Plaintiff paying for the production of the emails as PDFs, and avoided the unnecessary expense of a second production. Because Plaintiff’s actions are the reason a second production is necessary, Plaintiff must bear the cost of that production.” Id.
4. In Thomas-Byass v. Michael Kors Stores (California), Inc., 2015 WL 4397884 (C.D. Ca. Jul. 17, 2015), Magistrate Judge Kenly Kiya Kato required defendant to produce payroll information in Excel format because production in such format had been specifically requested, was a reasonably usable form and would allow the plaintiff to search, sort and filter the data.
Plaintiff sued defendant for alleged failure to pay overtime and related claims in violation of California state law. In discovery, plaintiff sought various payroll information and wage statements and requested such documents be produced in Excel format. The defendant produced payroll records in PDF format and claimed that such records were kept in that format in the ordinary course of business and that it should not be forced to create an electronic record to produce to the plaintiff. Defendant objected to production of wage statements, arguing that plaintiff had password-protected access to all her wage statements, and that defendant had provided all wage statements in its possession and did not have control over wage statements held by its payroll vendor. Id. at *1-*2.
As to the payroll records, the magistrate judge stated that it was “apparent Defendant maintains payroll and timecard information electronically” and found that the defendant “created an electronic record when it used a payroll program to create a report in PDF format ... in lieu of producing the [ESI] in the format requested by Plaintiff.” Id. at *3. She noted that defendant had not claimed “it would be unable or unduly burdensome to export the information in its payroll system to an excel spreadsheet.”Id. Magistrate Judge Kato concluded that requiring production in Excel format was appropriate, as the information sought was “relevant in this wage and hour dispute” and the request to provide the ESI “in excel spreadsheet format (i.e., ‘reasonably usable form’) is consistent with Fed. R. Civ. P. 34, because it will give Plaintiff the ability to search, sort and filter the information.” Id.
On the issue of wage statements, the magistrate judge denied plaintiff’s request, ruling that Fed. R. Civ. P. 26 requires that discovery be limited where it can be obtained from other sources that are “more convenient, less burdensome, or less expensive.” Id. at *4 (quoting Fed. R. Civ. P. 26(b)(2)(C)(i)). Magistrate Judge Kato noted that plaintiff had not claimed that she did not have access to her wage statements and found that plaintiff could just as easily request such documents from the third-party vendor that maintains such documents. Id.