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

  1. an Illinois Third District Appellate Court decision holding that a court order compelling a defendant to provide the passcode for his cellphone violated the defendant’s Fifth Amendment right against self-incrimination
  2. a Florida Fifth District Court of Appeal ruling that under Florida law nonparties to litigation do not have a duty to preserve evidence based solely on the foreseeability of litigation
  3. a U.S. District Court for the Southern District of Illinois case ordering defendants in a case involving the Uconnect “infotainment” system to supplement certain discovery responses but rejecting a number of requests seeking to expand defendants’ discovery obligations beyond the negotiated search terms
  4. a U.S. District Court for the Northern District of Washington decision ordering the defendant to respond to an interrogatory requesting the number of recorded calls made by defendant to California residents by providing the number of calls made to California residents and also requiring the parties to stipulate to a process for determining the number of these calls recorded

1. In People v. Spicer, 2019 IL App (3d) 170814 (Ill. App. Ct. Mar. 7, 2019), the Third District Appellate Court of Illinois held that a court order compelling a defendant to provide the passcode for his cellphone violated the defendant’s Fifth Amendment right against self-incrimination.

In this criminal case, the defendant was arrested when police discovered cocaine in a car in which the defendant was a passenger. Id. at *1. Police sought and obtained a search warrant for a cellphone that was found on the defendant when police searched him incident to the arrest. The court that issued the warrant found probable cause that the cellphone contained evidence of drug trafficking and permitted a search of the phone for records of calls, texts, email, browser activity and mapping history for the 30 days prior to arrest. The cellphone was passcode protected, and police were unable to view its contents.

The state moved to compel the defendant to provide the passcode. The defendant admitted that the phone was his but refused to provide the passcode, citing the Fifth Amendment right against self-incrimination. The trial court denied the motion to compel, agreeing that the right against self-incrimination applied, and the state appealed. On appeal, the state argued that the right against self-incrimination did not apply because the “foregone conclusion” exception applied. Id. at *2. The defendant argued that there was no jurisdiction over the appeal because the decision denying the motion to compel was a nonfinal order.

Writing for the Third District Appellate Court of Illinois, Justice Mary K. O’Brien affirmed the decision of the trial court. Beginning with the issue of jurisdiction, the court noted the state may appeal from an “order or judgment the substantive effect of which results in ... suppressing evidence.” In this case, the court concluded that the decision denying the motion to compel had the effect of suppressing evidence because the state would be unable to introduce evidence from the cellphone. The court therefore had jurisdiction over the appeal.

Turning to the constitutional issue, the court noted that the Fifth Amendment right against self-incrimination applies when “the defendant is compelled to make a testimonial communication that incriminates himself.” Id. at *3 (citing Fisher v. United States, 425 U.S. 391, 408 (1976). The act of production can be testimonial when the government “compels the defendant ‘to make extensive use of the contents of his own mind to communicate a statement of fact.’” Id. (quoting United States v. Hubbell, 530 U.S. 27, 43 (2000)). The court noted that courts in other jurisdictions had reached conflicting results on the question of whether compelling a defendant to provide a passcode is testimonial. Id. at *3 (citing cases)). The Illinois court found that it was testimonial, noting that the state was not “seeking the passcode per se but the information it will decrypt.” Id. at *4. In providing the passcode, the defendant would be compelled to “use his mind and demonstrate the factual basis that he could access his phone.” Accordingly, the act of providing the passcode would not qualify as a nontestimonial communication.

The state nonetheless argued that the foregone conclusion applied, rendering the Fifth Amendment right inapplicable. Under this exception, the right against self-incrimination does not apply to the act of production “where the existence, location and authenticity of the evidence is a foregone conclusion.” Id. at *3. The state argued that it had proven with reasonable particularity that the passcode existed, that the defendant knew the passcode and that the cellphone would be unlocked by the defendants entering the passcode. Id. at *4. The court held that the exception did not apply because what mattered was whether the state could prove that the evidentiary contents of the cellphone were a foregone conclusion, not whether the passcode existed. On this point, the state had failed to present evidence regarding the contents of the cellphone beyond its generalized suspicion that cellphones are often used in drug trafficking.

The Illinois appellate court found that the trial court did not err in denying the state’s motion to compel because requiring the defendant to provide the passcode was a testimonial act implicating defendant’s Fifth Amendment right against self-incrimination and the foregone conclusion exception did not apply. 2. In Shamrock-Shamrock, Inc. v. Remark, 2019 WL 1868175 (Fla. Dist. Ct. App. Apr. 26, 2019), the Fifth District Court of Appeal of Florida held that under Florida law nonparties to litigation do not have a duty to preserve evidence based solely on the foreseeability of litigation.

 In this case, plaintiff had sought to rezone property in Florida and sued the city and planning board after denial of the rezoning request. Id. at *1. As part of the lawsuit, plaintiff sought to depose a planning board member who had voted to deny the request. Plaintiff served the first of several deposition notices in May 2011 but did not depose the planning board member until April 2012. In March 2012, plaintiff also served a request for documents on the planning board member to be produced at the deposition. At the deposition, the planning board member testified that she had destroyed her old computer in December 2011 — after having received the deposition notice but before receiving the request for documents. The planning board member had not preserved any records from the old computer or taken any steps to determine whether the old computer contained documents relevant to the deposition.

After the deposition, plaintiff brought a separate lawsuit against the planning board member for spoliation. Under Florida law, an independent cause of action against third parties for spoliation of evidence exists where the third party “loses, misplaces, or destroys evidence critical” to the original suit. Id. at *2. The elements of such a claim are “(1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages.” After the parties filed cross-motions for summary judgment, the trial court granted summary judgment for the planning board member, concluding that she had no legal duty to preserve evidence at the time she destroyed the computer.

On appeal, the District Court of Appeal of Florida upheld the trial court’s decision in an opinion written by Judge Meredith L. Sasso. The appellate court noted that Florida courts have held that a duty may arise in third-party spoliation cases when the duty is based on the existence of a contract, statute or properly served discovery request. But no Florida court had recognized or imposed a duty to preserve evidence based on foreseeability or actual knowledge of litigation.

In considering whether to impose a duty, the court balanced the interests of each party and society. *4. Judge Sasso noted that jurisdictions that permit suits against third parties for spoliation “generally decline to recognize a broad, common law duty to preserve evidence.” Courts also “tread carefully due to a number of competing concerns,” including individual property rights, ensuring the finality of judgments and imposing undue financial burdens on nonparties. Weighed against these interests of third parties, courts have recognized “the importance of ensuring that spoliation does not improperly impair a litigant’s rights.” Id. at *5. But this interest is less important when litigants already have “various legal mechanisms to impose upon a thirty party a duty to preserve necessary evidence,” chief among them a subpoena for documents.

Applying the balance of interests to the facts of this case, the court held that the planning board member had no legal duty to preserve evidence when the evidence was discarded. The only basis for imposing a duty to preserve evidence would be the planning board member’s knowledge of the litigation via the deposition notices and her “anticipation that something in her control could potentially be of use to that litigation.” The court declined to impose any duty to preserve evidence on nonparties in these circumstances, which would be “tantamount to declaring a general legal duty on any nonparty witness to anticipate the needs of others’ lawsuits.”

3. In Flynn v. FCA US LLC, 2019 WL 1746266 (S.D. Ill. April 18, 2019), Magistrate Judge Reona J. Daly ordered defendants in a case involving the Uconnect “infotainment” system to supplement certain discovery responses but rejected a number of requests seeking to expand defendants’ discovery obligations beyond the negotiated search terms.

Plaintiffs, owners and lessees of Chrysler vehicles filed a class action against defendants FCA US LLC and Harman International Industries, Inc., alleging fraud and warranty claims associated with an alleged design flaw in the Uconnect system in certain 2013-15 Chrysler vehicles. The Uconnect system is an automobile “infotainment” system that allows integrated controls over phone, navigation and entertainment functions. Plaintiffs claimed that the design and installation of the Uconnect system made it vulnerable to hackers seeking to take remote control of the affected vehicles.

Following certification of three classes on plaintiffs’ claims, the case was reassigned to Magistrate Judge Daly for pretrial and discovery matters. During discovery, plaintiffs sought documents related to FCA’s penetration tests, cybersecurity risk assessments and consumer survey information. Plaintiffs also argued that FCA’s responses to various contention interrogatories were improper and asked defendant to supplement its responses.

As to the penetration testing, plaintiffs contended that FCA provided incomplete final reports of penetration tests that were missing, among other things, a test conducted by Reply S.p.A. on the European version of the Uconnect as well as a “whole vehicle” penetration test conducted by Southwest Research in late 2015 or early 2016. Further, despite plaintiffs’ requests, FCA also produced few communications related to those tests. FCA argued that the final report of the testing on the European version of the Uconnect was in the control of a separate entity and pointed out that it had produced a validation test that included the findings from the European report plaintiffs sought. With respect to the “whole vehicle” penetration test, FCA stated that it conducted a search with the applicable electronically stored information (ESI) search terms and had not found that test in the search but that plaintiffs nonetheless had that test. As for communications, FCA stated that it did not anticipate much back and forth between itself and the tester and that it conducted a search for the communications using the search terms and then reviewed the results for both privileged and responsive documents.

Considering the relevance of this requested discovery under Federal Rule of Civil Procedure 26(b)(1), Magistrate Judge Daly ruled that the penetration testing reports were relevant to the issues in the case only insofar as they related to, or addressed, the Uconnect system. Id. at *2. She stated that FCA was not required to supplement its penetration test production because plaintiffs’ claims were premised on alleged defects found in the Uconnect system, and she could not see how penetration testing beyond the Uconnect system, including testing of the European version of Uconnect and the “whole vehicle” penetration test, were within the relevant scope of the lawsuit. With respect to communications, Magistrate Judge Daly ruled that because it appeared Harman had produced documents that included FCA as a party but were not produced by FCA, it was necessary for FCA to supplement its production with additional, nonprivileged communications. Id. at *3.

Regarding cybersecurity risk assessments, plaintiffs requested that FCA provide them with its vehicle threat and risk assessments, but the parties disputed the scope of the relevant documents. Plaintiffs argued that they were entitled to information concerning the affected vehicles and their components as well as any information concerning potential threats to any vehicles because there may be something in common with the affected vehicles. Magistrate Judge Daly, however, was not convinced that the appropriate scope of FCA’s production should include threats to any vehicles and ruled that FCA would be required to produce only those documents discussing its risk and threat assessments related to the affected vehicles.

Plaintiffs also sought communications from the individual involved in the formation of FCA’s Global Vehicle Cybersecurity Group in late 2014 until her departure from the company in 2016. Plaintiffs contended they received only 53 email strings with that individual as the author, which they deemed insufficient given her role at FCA. FCA maintained that it produced 1,300 documents that were to, from or including the individual and that it applied the same ESI search terms to this search as it applied throughout the discovery process. After considering the parties’ arguments, Magistrate Judge Daly ruled that plaintiffs sought a broader search based on mere speculation, and therefore no additional search was warranted.

As to consumer survey information, plaintiffs sought documents relating to consumers’ or potential purchasers’ consideration of safety or cybersecurity. FCA objected to the requests as overbroad and not properly limited to cybersecurity and refused to conduct a search for the requested documents. Magistrate Judge Daly ruled that safety was within the scope for production of consumer survey information insofar as plaintiffs were contending that hackers could cause various safety issues, and FCA was therefore required to produce documents addressing the importance of safety to consumers. Id. at *4.

Plaintiffs also requested that FCA produce documents to support their response to certain interrogatories that the Uconnect systems in certain affected vehicles were “state of the art.” According to plaintiffs, to make such a claim, FCA must have information evidencing other manufacturers’ cybersecurity but produced very little of such information. FCA responded that it produced the documents in its possession that were captured using the search terms. It further specified that the information sought does not exist in one place but rather “here and there” and in “tidbits.” Magistrate Judge Daly agreed with the plaintiffs, ruling that the search terms did not adequately address, or provide a search for, documents related to other manufacturers’ cybersecurity and that the information requested was relevant under Rule 26(b)(1). Accordingly, Magistrate Judge Daly ordered the parties to meet and confer to discuss additional, limited search terms for the narrow purpose of discovering additional documentation regarding other manufacturers’ cybersecurity.

Plaintiffs sought documents concerning FCA’s rules, policies, procedures and processes for authorized dealers, arguing that the critical connection for one of their claims was the relationship between FCA and its authorized dealers, but plaintiffs had received only three documents responsive to this request. FCA argued that it produced its contracts with every dealership in Illinois as well as the documents that govern those relationships and tell the authorized dealers what FCA can and cannot control. Id. at *5. FCA also argued that it did not necessarily produce documents related to certain incentive programs it used with its dealers because those programs were not relevant to the claims at issue in the dispute. Magistrate Judge Daly agreed with FCA, ruling that its production of documents responsive to these requests was sufficient.

Plaintiffs also sought an order requiring defendants to supplement their responses to contention interrogatories. On this issue, Magistrate Judge Daly stated that “[c]ontention interrogatories require the answering party to commit to a position and give factual specifics supporting its claims.” Id.(internal quotation marks omitted). She also noted that while contention interrogatories “serve a proper purpose of narrowing the issues for litigation, ... courts have determined that a party need not respond to contention interrogatories that would be an unduly burdensome task requiring a party to produce veritable narratives of their entire case.” Id. (internal quotation marks omitted).

Interrogatory number 32 asked FCA, “If you contend that dealerships that sold the Affected Vehicles are not in privity with FCA, or that Harman is not in privity with FCA, then state the facts on which you base that contention.” FCA objected to this interrogatory on, among other grounds, relevancy. Magistrate Judge Daly sustained the relevancy objection, stating that while it was clear that privity was relevant to the case, the pertinent question in this case was privity between the consumer and FCA.

The parties also disputed FCA’s responses to six other contention interrogatories. These interrogatories sought, in effect, all of the facts FCA was relying upon to support its defense in the case. Id. at *6. Magistrate Judge Daly ruled that FCA’s responses to these interrogatories, which merely pointed plaintiffs to a number of documents and depositions, were sufficient, stating, “It would be unreasonable to require FCA to further respond to the requests or provide any analysis or narrative concerning how it plans to apply the law to the facts.” Magistrate Judge Daly then amended the scheduling order in light of her various discovery rulings calling for additional production of documents.

4. In Franklin v. Ocwen Loan Servicing, LLC, 2019 WL 1130477 (N.D. Cal. Mar. 12, 2019), Judge Susan Y. Illston ordered the defendant to respond to an interrogatory requesting the number of recorded calls with California residents by providing the number of calls made to these residents. The judge also required the parties to stipulate to a process for determining the number of calls recorded.

The plaintiff sued Ocwen Loan Servicing, LLC, for illegal recording of cellular phone conversations pursuant to California Penal Code Section 632.7. The suit was brought individually and on behalf of a proposed class consisting of “[a]ll persons in California whose cellular telephone conversations were recorded without their consent by Defendant and/or its agents from November 11, 2011 through the date of filing this Complaint.” Id. at *1.

This discovery dispute arose when, in its interrogatories, the plaintiff requested “information related to the number of California residents whose conversations with Defendant were recorded.” The defendant argued that the request was unduly burdensome and disproportionate to the needs of the case, as identifying these residents would require the defendant to examine all accounts with a California address and listen to all associated recordings to determine whether the individual actually answered the call. This would require “thousand[s] or hundreds of thousands of hours of work.” Instead, the defendant suggested the parties stipulate that it called and recorded a minimum number of persons, such as “over 100 persons.” The plaintiff rejected this suggestion, stating that the specific information requested “is vital to class certification.”

Citing Federal Rule of Civil Procedure 26(b)(1), Judge Illston determined that the information was relevant to the plaintiff’s motion for class certification. Judge Illston further determined that the information was relevant to the question of damages, as the court had previously ruled that the plaintiff could seek classwide damages up to $5,000 per class member. Id. at *2.

Judge Illston distinguished the case from precedent cited by both parties. Id. (citing Ronquillo-Griffin v. Transunion Rental Screening Sols., Inc., 2018 WL 325051 (S.D. Cal. Jan. 8, 2018)). In Ronquillo-Griffin, the plaintiff sought to compel production of the actual recordings defendant had made of the potential class members. In that case, the court found that “intrusion into class members’ privacy outweighed the minimal relevance to the plaintiff of gaining access to the content of the calls.” Id. (citing Ronquillo-Griffin, 2018 WL 325051, at *4). In the instant case, on the other hand, the plaintiff sought only the “number of California residents whose conversations with Defendant were recorded,” rather than the recordings themselves.

In light of the relevance of the information requested by the plaintiff, Judge Illston ordered the defendant to respond to the interrogatories with, “at minimum, information regarding the total number of phone calls defendant made during the relevant period to California residents.” Judge Illston further ordered the parties to stipulate to a method of extrapolating the number of recorded calls. “The intent of this Order is that defendant will respond to the interrogatories with information regarding the number of calls made, and the parties will agree to a process for estimating the number of calls recorded.” Id. (emphasis in original).