This Sidley Update addresses the following recent developments and court decisions involving e-discovery issues:

  1. a U.S. Court of Appeals for the Seventh Circuit decision affirming the grant of summary judgment to defendants after upholding the district court’s exclusion of plaintiffs’ expert testimony for failure to meet the reliability threshold under Fed. R. Evid. 702
  2. a U.S. Court of Appeals for the Ninth Circuit opinion relying on the good faith exception in reversing a district court’s order granting defendant’s motion to suppress cell-site location information in a murder case
  3. a U.S. District Court for the District of Minnesota ruling granting a motion by plaintiffs to compel defendant to comply with a subpoena for documents but requiring plaintiffs to re-serve the subpoena on the defendant’s CEO and the California Secretary of State
  4. a U.S. District Court for the Eastern District of Michigan decision overruling objections to a magistrate judge’s order granting defendant’s motion to compel plaintiff to produce a limited set of social media posts

1. In Robinson v. Davol, Inc., 2019 WL 275555 (7th Cir. 2019), the U.S. Court of Appeals for the Seventh Circuit upheld the district court’s exclusion of expert testimony for failure to meet the reliability threshold under Fed. R. Evid. 702 and affirmed summary judgment for defendants.

In this products liability action governed by Indiana law, the estate of Georgia J. Bowersock, who died after a surgical mesh patch was implanted in her body, sued Davol, Inc., the patent holder and C.R. Bard, Inc., the manufacturer, claiming that the surgical patch implanted to treat Bowersock’s hernia was defective and caused her death. The patch consists of two layers of mesh that surround plastic “memory rings.” Physicians implant the patch in such a way that, after implantation, the ring “springs back into its original shape and flattens the mesh against the abdominal wall.” Id. at *1. The patch remains in the body after the hernia has healed.  Soon after the patch hit the market in 2001, patients reported problems with the plastic memory rings. In late 2005 and early 2006, Bard recalled several versions of the patch. Id. at *2.

In July 2005, before these recalls, a surgical mesh patch was implanted in Bowersock’s abdominal area. In early October 2006, Bowersock went to the emergency room with an abdominal-wall abscess. She returned days later with a related infection and went into cardiac arrest and died a few weeks later. Her cause of death was determined to be pneumonia, but the coroner also noted “abdominal adhesions” and an “abdominal wall fistula.”

Bowersock’s estate retained three experts to opine on her cause of death. The first, Dr. Stephen Ferzoco, had testified in cases where the memory rings broke or the patch adhered to the body incorrectly, which he conceded had not occurred in this case. Instead, he offered a novel theory of causation: “[T]he ring had buckled but stayed intact, and the raised portion of the mesh rubb[ed] up against the bowel causing a fistula or break and then seal[ed] up prior to explantation or discovery of the mesh in this bowel.” Id. (citation and quotation mark omitted). Dr. Ferzoco had never formally or professionally presented this theory, nor did he produce medical literature on the theory or any records of patients experiencing a similar problem. He also conceded that the medical records and autopsy report did not show evidence of the phenomenon he described. Id. at *3.

The plaintiffs also offered Dr. William Hyman, a professor of biomedical engineering, and Dr. Roland Kohr, the coroner who performed Bowersock’s autopsy. The defendant moved to exclude all three expert opinions. The district court granted the defendant’s motion, finding that (1) Dr. Ferzoco’s theory failed to meet the reliability threshold under Fed. R. Evid. 702; (2) Dr. Hyman was not qualified to opine about medical causation, and (3) Dr. Kohr was precluded from testifying because the plaintiffs failed to timely disclose his expert status under Fed. R. Civ. P. 26. Thus, the district court excluded the plaintiffs’ causation experts and entered summary judgment for the defendants.

On appeal, the Seventh Circuit reviewed the district court’s entry of summary judgment based on its application of the Daubert standard. Noting that establishing causation is required to prove a violation of the Indiana Products Liability Law, the Seventh Circuit focused on Dr. Ferzoco’s testimony, which had been excluded under Fed. R. Evid. 702: “[W]ithout it the plaintiffs cannot establish medical causation.” Id. at *4.

Under Rule 702, an expert’s opinion is permitted if “(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.” Id. (quoting Fed. R. Evid. 702).

In considering this standard, courts apply the two-step framework established in Daubert v. Merrell Dow Pharm., Inc. 509 U.S. 579 (1993). The proponent of the expert testimony must first establish that the expert will testify to “valid scientific, technical, or other specialized knowledge.” Id. (citations omitted). The proponent must then show that such testimony will assist the trier of fact. At the first step, the judge evaluates whether the expert’s theory has been “(1) tested, (2) subjected to peer review and publication, (3) analyzed for known or potential error rate, and/or is (4) generally accepted within the specific scientific field.” Id. (citation omitted). At the second step, the judge must determine “whether the proposed scientific testimony fits the issue to which the expert is testifying.” Id. (citation omitted).

The Seventh Circuit determined that the district court had properly applied Rule 702 and Daubert in excluding Dr. Ferzoco’s testimony. The district court found the testimony unreliable because it had not been tested, subjected to peer review or described in medical literature. Furthermore, Dr. Ferzoco’s theory was not supported by Bowersock’s medical records or autopsy report. Finally, although Dr. Ferzoco contended he had previously treated patients experiencing a similar injury, he failed to produce any patients or associated records.

On appeal, the plaintiffs argued that Dr. Ferzoco’s method was the equivalent of a “differential diagnosis.” The Seventh Circuit found, however, that the plaintiffs waived this argument by not raising it until the motion to alter or amend the trial court’s judgment, which was “too late to preserve an argument for appeal.” Even had it been preserved, the Seventh Circuit determined that the argument would fail on its merits because a differential diagnosis requires potential diagnoses to be “scientifically valid,” and Dr. Ferzoco’s theory was found not to be sufficiently reliable. Id. at *5.

The plaintiffs also argued that “a scientific theory should not be rejected solely because it lacks peer review.” However, the district court gave multiple reasons for its decision, “including the lack of corroborating evidence in Mrs. Bowersock’s medical records and autopsy report.” Finally, the plaintiffs argued that the lack of scientific literature should go to the weight and not the admissibility of the expert’s testimony. However, “[t]hat’s not the correct standard. Rule 702 and Daubert require the judge to act as a vigorous gatekeeper to ensure the reliability of expert testimony.” Id. (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999)).

Because the district court exercised appropriate discretion in excluding Dr. Ferzoco’s testimony, and because the plaintiffs could not prove causation without it, the Seventh Circuit upheld the grant of summary judgment in favor of the defendants.

2. In United States v. Elmore, 2019 WL 1008722 (9th Cir. Mar. 4, 2019), the U.S. Court of Appeals for the Ninth Circuit relied on the good faith exception in reversing a district court’s order granting defendant’s motion to suppress cell-site location information in a murder case.

Shortly after the murder of Calvin Sneed, San Francisco police obtained a warrant authorizing the seizure of defendant Antonio Gilton’s historical cell-site location information (CSLI) from his cell phone provider. Id. at *1. Subsequently, defendant was indicted on four counts related to Sneed’s murder. Id. at *2. Defendant later filed a motion to suppress the CSLI evidence, contending that the underlying warrant was deficient.

The district court granted defendant’s motion to suppress. In the district court’s view, “[t]he affidavit in support of the … warrant plainly failed to provide a substantial basis for concluding that there was probable cause to search” because the affidavit “hardly mention[ed] [defendant]” and did not provide a substantial basis for inferring he was in the San Francisco area at the time of the shooting. Id. at *2. The district court also held that the “good faith” exception did not apply because “it was entirely unreasonable to believe that the affidavit’s passing, innocuous references to [defendant] established probable cause to obtain his cell phone data.” The government appealed the district court’s order granting the motion to suppress. Id. at *3.

While this case was on appeal before the Ninth Circuit, the Supreme Court issued its decision in Carpenter v. United States, 138 S. Ct. 2206 (2018). In Carpenter, the Supreme Court held that government acquisition of an individual’s CSLI from a cell phone provider qualifies as a search under the Fourth Amendment. Therefore, “Fourth Amendment protections generally require the government to obtain a warrant supported by probable cause before acquiring CSLI records.” Id. (internal brackets and quotation marks omitted). In this case, because the government obtained a warrant before pursuing defendant’s CSLI, the Ninth Circuit clarified that the only questions presented were (1) whether the warrant was supported by probable cause and (2) if not, whether the government’s search should be upheld on the basis of the officers’ good faith reliance on the warrant.

On the first question, the Ninth Circuit began by acknowledging that an issuing judge’s finding of probable cause is entitled to “great deference.” However, the Ninth Circuit also noted that it “may determine that a warrant was invalid where the magistrate’s probable-cause determination reflected an improper analysis of the totality of the circumstances.” Id. (internal quotations omitted). In this case, the government argued that the totality of the circumstances supported an inference that Sneed’s murder was “a family solution to a family problem.” Id. at *4. According to the government, defendant had a motive to commit the crime because he was related to Sneed’s minor girlfriend, L.G., who had lived with defendant in Los Angeles when she met Sneed, and based on Sneed’s treatment of L.G., defendant had reason to be upset with Sneed.

The Ninth Circuit rejected the government’s assertions, ruling that “[t]he affidavit’s scant and innocuous references to [defendant] do not establish a ‘fair probability’ that evidence of the crime would be found in [defendant’s] location data.” Agreeing with the district court’s analysis, the Ninth Circuit stated that because the affidavit lacked any evidence showing “that [defendant] had communicated with family members (or anyone else) about L.G.’s relationship with Sneed,” there was no basis to support the government’s inference that defendant was upset with Sneed, that he had motive to commit the crime or that he was even in the San Francisco area on the night of Sneed’s murder. Id. (internal quotations omitted). Accordingly, the Ninth Circuit affirmed the district court’s ruling that the government lacked probable cause to acquire defendant’s CSLI records.

The Ninth Circuit then considered the application of the “good faith” exception. In United States v. Leon,468 U.S. 487 (1984), the Supreme Court held that in cases where police seize evidence “in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective,” the exclusionary rule does not apply. Id. at *5 (internal quotations omitted). In line with the district court’s ruling in this case, however, “where an affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,” suppression of the improperly seized evidence “remains an appropriate remedy.” Id. (internal quotation marks and brackets omitted).

Ultimately, the Ninth Circuit disagreed with the district court, ruling that the warrant’s deficiencies were “not so stark as to render official belief in the existence of probable cause entirely unreasonable.” Id. at *6 (internal quotations omitted). The Ninth Circuit observed that the warrant was issued only two days after Sneed’s murder, the affidavit was lengthy and detailed, police suspected that multiple family members instigated Sneed’s murder and that officers discussed the case with the District Attorney’s office. While the court re-emphasized that these facts did not add up to probable cause, it decided that it could not conclude that no reasonable officer would have relied on the warrant. The Ninth Circuit also noted that “[i]n light of the prevailing belief [at the time of the investigation] that CSLI data was not protected by the Fourth Amendment,” the officers did not commit “willful” or “grossly negligent” error, as they nevertheless took a precautionary step by seeking a warrant. Id. at *7. The Ninth Circuit therefore ruled that the “good faith” exception applied and, consequently, reversed the district court’s order granting defendant’s motion to suppress.

Circuit Judge M. Margaret McKeown dissented. While joining the majority’s ruling that the government lacked probable cause to acquire defendant’s CSLI, Judge McKeown disagreed with its application of the good faith exception. Judge McKeown agreed with the district court that the exception could not save the government’s warrant in this case because “[a]s any reasonable officer should have known,” none of the facts in the affidavit provided a reasonable basis from which to infer that defendant’s CSLI connected him to Sneed’s murder. Id. (McKeown, J., dissenting). Further, whereas the majority distinguished Ninth Circuit precedent relied upon by defendant, Judge McKeown stated that the case in question, United States v. Grant, 682 F.3d 827 (9th Cir. 2012), “fits [defendant’s] situation to a tee” because, in both Grant and, in this case, the mere presence of a family connection cannot justify applying the good faith exception. Finally, Judge McKeown expressed concern that the majority’s opinion would expand the good faith exception without providing any clear limiting principles.

3. In Paisley Park Enterprises, Inc. v. Boxill, 2019 WL 1036059 (March 5, 2019, D. Minn.), Magistrate Judge Tony Leung granted in part a motion by plaintiffs to compel defendant to comply with a subpoena for documents, rejecting defendant’s arguments but requiring plaintiffs to re-serve the subpoena on the defendant’s CEO and the California Secretary of State.

This case was brought by the estate of the musician Prince against one of Prince’s former sound engineers and several associates, including Sidebar Legal PC, for allegedly publishing a number of Prince songs without permission and in violation of a confidentiality agreement. Plaintiffs attempted to serve their complaint and a document subpoena on Sidebar at its registered business address but soon discovered that the company no longer operated at that address. They then contacted Sidebar’s CEO, Matthew Wilson, and asked for an updated address. Wilson did not respond, so Plaintiffs served their complaint on Wilson at his home address in California. Sidebar did not answer the complaint and was found to be in default.

After the entry of default, plaintiffs issued a revised subpoena for documents to Sidebar, again serving Wilson at his home address. Two weeks later, Sidebar responded with a letter listing the defunct business address and objecting to the subpoena on numerous grounds. It produced no documents and ignored plaintiffs’ requests to meet and confer regarding its objections. Plaintiffs then filed a motion to compel.

Rule 26(b) “permits parties to ‘obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.’” Id. at *2 (quoting Fed. R. Civ. P. 26(b)(1)). This gives the judge broad discretion in considering whether to grant or deny a discovery request.

The first issue was whether plaintiffs’ chosen instrument — a Rule 45 subpoena — was the appropriate method for obtaining discovery from a defendant. Acknowledging that courts had split on this issue, Magistrate Judge Leung concluded that he did not need to resolve it because Sidebar was in default and “[f]ederal courts have consistently held that a defaulting defendant should be treated as a non-party with respect to any discovery sought.” Id. (quoting La Barbera v. Pass 1234 Trucking, Inc., 2008 WL 2564153, at *1 (E.D.N.Y. June 25, 2008)).

Magistrate Judge Leung then considered the merits of plaintiffs’ motion to compel, which sought production of documents related to the release of Prince’s music that was at issue in the case as well as the work Sidebar performed for the other defendants and documents related to an LLC created for the purpose of releasing that music. As the magistrate judge explained, “[t]here is no doubt that Plaintiffs’ requests are relevant to the issues presented by this litigation. Sidebar was one of the primary entities responsible for the release of the Prince EP and provided legal opinions to the other Defendants regarding the release of the music.”

Sidebar had not filed a response to the motion to compel, which would alone be grounds for granting it, but Magistrate Judge Leung nevertheless considered the objections raised in Sidebar’s response to the subpoena.

The first objection contested the validity of service, presumably because the subpoena was not delivered to Sidebar’s registered address. Magistrate Judge Leung noted that in recent years courts have become more amenable to alternative means of service “so long as the method of service is reasonably calculated to provide timely, fair notice and an opportunity to object or file a motion to quash.” Id. at *3 (quoting Fujikara Ltd. v. Finisar Corp., 2015 WL 5782351, at *5 (N.D. Cal. Oct. 5, 2015)). Further, Rule 45 does not specify what counts as personal service on a corporation in the U.S., and courts routinely rely on Fed. R. Civ. P. 4 as guidance on this issue. Under Rule 4, one option is to deliver a subpoena to a designated officer and, if required, to serve a copy by mail to the person to whom the subpoena was directed. Alternatively, service can be performed in any manner authorized by state law.

As relevant here, California law allows for service by delivering the subpoena to a designated officer or agent of the company; it also allows for alternative service when the agent cannot be found at the designated address:

In such cases, the Court may order that the party effect service by delivering “one copy of the process for each defendant to be served, together with a copy of the order authorizing such service” to the California Secretary of State. Cal. Corp. Code § 1702(a). The Secretary of State must then forward the service of process to the corporation’s principal executive office or the last designated agent for service of process. Id. § 1702(b). If no agent or address can be identified, then no additional action need be taken by the Secretary of State. Id. Service is deemed complete on the 10th day after delivery of the process to the Secretary of State. Id. § 1702(a).

In this case, the subpoena was served on CEO Wilson personally, who was Sidebar’s only corporate officer and registered agent. “Though Plaintiffs did not serve the subpoena at Sidebar’s registered address with the California Secretary of State, that is only because Sidebar has not kept current its registered address, nor identified any other address by which it could be served. As a result, if Plaintiffs could not serve Sidebar at Wilson’s home address, then it likely would be impossible for them to ever serve Sidebar.” Id. at *4. This satisfied the substance of the rule as plaintiffs “did ... all they could to ensure the subpoena was delivered personally to Sidebar’s registered agent.”

Nevertheless, “[o]ut of an abundance of caution,” Magistrate Judge Leung ordered “Plaintiffs to re-serve Sidebar in two different ways. First, the Court will order Plaintiffs to mail a copy of this order, along with their subpoena, to Wilson’s home address. Second, the Court will order Plaintiffs to serve a copy of this order and their subpoena through the California Secretary of State, as provided by section 1702 of the California Corporations Code.”

Sidebar’s next objection was that the subpoena was not accompanied by any witness fee. This, Magistrate Judge Leung concluded, was “completely without merit” as the subpoena sought only documents. And Sidebar’s other objections — that the requests were not related to the claims or defenses of the suit, did not give adequate time to respond and imposed an undue burden on Sidebar — were also rejected as insufficiently specific. “Mere statements like these constitute nothing more than boilerplate objections that are insufficient to preserve the objecting party’s rights.” Further, while Sidebar also objected that the requests sought privileged information, it had declined to produce a privilege log. Magistrate Judge Leung declined to rule that this failure resulted in a waiver of the privilege, but warned Sidebar that any future failures to produce a proper privilege log “could well result in an outright waiver of the privilege.” Id. at *5. Magistrate Judge Leung ordered “Sidebar to respond to the subpoena in full.” Further, considering the circumstances of the case — specifically that Sidebar was a defendant, albeit one in default — Magistrate Judge Leung concluded preemptively that Sidebar should bear the cost of responding, consistent with the usual practice under Rule 45.

Finally, Magistrate Judge Leung noted that plaintiffs had asked the court to use its inherent authority to sanction Sidebar for its recalcitrance. The magistrate judge agreed with plaintiffs that “Sidebar has not conducted itself in the manner that the Court expects of its litigants” and remarked that “[s]anctions are typically appropriate for such conduct.” Id. at *6. Magistrate Judge Leung nevertheless opted to “provide one more opportunity for Sidebar to respond fully to Plaintiffs’ subpoena.” For any future misconduct, however, he warned that both civil contempt and monetary sanctions would be considered “as well as the possibility of referring its agent, Wilson, to California state bar authorities for possibly disciplinary proceedings.”

Magistrate Judge Leung concluded by ordering plaintiffs to serve a copy of Magistrate Judge Leung’s order and the subpoena on Wilson and on the California Secretary of State for service on Sidebar within 10 days. He also directed Sidebar to respond within 45 days and denied plaintiffs’ request for sanctions without prejudice.

4. In Robinson v. MGM Grand Detroit, LLC, 2019 WL 244787 (E.D. Mich. Jan. 17, 2019), Judge George Caram Steeh overruled objections to a magistrate judge’s order granting defendant’s motion to compel plaintiff to produce a limited set of social media posts.

Plaintiff worked as a valet attendant for defendant for 14 years before being terminated. After he was fired, he sued for race and disability discrimination in violation of Title VII, the Americans With Disabilities Act, and in retaliation for taking Family and Medical Leave Act (FMLA) leave.

This dispute arose when defendant sought production of various social media posts made by plaintiff, which he refused to produce. Defendant then filed a motion to compel, which was granted by the magistrate judge, who concluded that the requested material “was relevant to the question of (1) his alleged disability, his FMLA time, and after-acquired evidence of his potential FMLA abuse, (2) his claim for emotional damages, and (3) his efforts to mitigate his wage loss.” Id. at *1.

Plaintiff appealed the order to the district court. Judge Steeh first set out the standard governing his review, stating that parties may object to such nondispositive orders within 14 days, but, in order to prevail, they must show that the magistrate judge’s ruling was “clearly erroneous or contrary to law.”

Plaintiff argued that “Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387 (E.D. Mich. 2012) supports the conclusion that the information sought from his private social media accounts is not discoverable.” In that case, “a slip and fall action, the court held that plaintiff’s entire Facebook account was not discoverable where there was no threshold showing that Plaintiff was exaggerating her injuries, and thus, defendant failed to show that the requested information was reasonably calculated to lead to the discovery of admissible evidence.”

In this case, by contrast, Judge Steeh found this request more narrowly tailored:

Defendant has limited the discovery sought to Plaintiff’s Facebook, Google Photo, and Google location date for the limited time period that Plaintiff alleges he needed FMLA leave and was unable to work. Also, in its motion to compel, Defendant relied on gym records which suggested that Plaintiff was working out while on FMLA leave. Under these circumstances, Defendant has demonstrated that the limited social media posts to be produced are relevant and proportional to the needs of the case insofar as they relate to Plaintiff’s activities while out of work. Accordingly, the magistrate judge’s ruling compelling Plaintiff to produce social media posts during the limited time period he was out of work on medical leave was not clearly erroneous or contrary to law. Moreover, the order provided that any sensitive or personal information could be protected by entry of a joint protective order.

Plaintiff also relied on recent Supreme Court decisions holding that a warrant is generally required before law enforcement may search and seize a cell phone’s contents and in order to obtain historical cell phone location data. These decisions, the Court held, were “irrelevant to the question of what information is discoverable in civil cases where a plaintiff or defendant often makes his or her social media activity relevant to the case.”

Judge Steeh also concluded that the magistrate judge’s decision to award defendants attorney fees relating to the motion to compel was not clearly erroneous and that her denial of plaintiffs’ motion for an extension of the discovery deadline should stand as plaintiff had “failed to demonstrate excusable neglect for his failure to timely submit discovery requests to Defendant.” Id. at *2.

The Court concluded by overruling plaintiff’s objections and ordering plaintiff to produce the requested information within 21 days and to pay for defendants’ reasonable expenses and attorney fees in connection with the motion to compel.