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

  1. a ruling from the U.S. District Court for the District of Minnesota declining to compel a defendant to produce text messages from certain of its employees’ personal cellphones but enforcing in part subpoenas directed to the employees for the same data
  2. an order from the U.S. District Court for the District of Colorado sanctioning the Defendant and its counsel for failing to preserve certain text messages and then misrepresenting to the court that the messages were being produced
  3. a decision from the U.S. District Court for the Northern District of Illinois imposing curative measures in the form of findings of fact that would be read to the jury detailing the circumstances of the defendant’s spoliation of video recording evidence and the potential inferences the jury could draw from those circumstances
  4. an opinion from the U.S. District Court for the District of New Mexico denying motions to exclude the testimony of two experts proposed by the government: a forensic examiner knowledgeable about extracting digital files and a special agent knowledgeable about identification and attribution of internet identities

1. A ruling from the U.S. District Court for the District of Minnesota declining to compel a defendant to produce text messages from certain of its employees’ personal cellphones but enforcing in part subpoenas directed to the employees for the same data.

In In re Pork Antitrust Litigation, No. 18-cv-1776 (JRT/HB), 2022 WL 972401 (D. Minn. March 31, 2022), U.S. Magistrate Judge Hildy Bowbeer declined to compel a defendant to produce text messages from certain of its employees’ personal cellphones based on the defendant’s bring-your-own-device (BYOD) policy but enforced in part subpoenas directed to the employees for the same data.

In this multidistrict class action litigation, major American pork producers and integrators were alleged to have conspired to fix pork prices in violation of state and federal antitrust laws. In 2018, Plaintiffs requested that one defendant, Hormel, preserve data from the personal cellphones of five company executives through forensic imaging. Id. at *1. These parties agreed to an electronically stored information (ESI) protocol and protocol for preservation of phone records in which Hormel named 30 current and former employees as custodians.

Hormel responded to a number of Plaintiffs’ discovery requests by claiming it did not have possession, custody, or control of the custodians’ personal cellphone data. In November 2018 (before the ESI protocol was finalized), Plaintiffs served requests for production seeking communications between Defendants or documents containing facts relevant to the lawsuit or about supply, demand, and price of pork products. “Document” was defined to include text messages and cloud backups or archived text message data. Interrogatories served in November 2020 sought further information about the make, model, and use of the custodians’ cellphones. Hormel initially responded only with cellphone numbers and later informed Plaintiffs that it would not produce the requested text data.

Plaintiffs subpoenaed the custodians directly for their cellphone and text data. Id. at *2. Plaintiffs proposed searches of text messages from individuals associated with any Defendant or other pork integrators and all text messages containing any of a set of keywords. Plaintiffs also proposed a review and production of relevant messages from the keyword searches but demanded that all “inter-defendant” text messages be produced without a relevance review. The custodians all responded that they were using different personal cellphones at the time of the subpoenas than they used during the relevant time period, and most stated they either did not use their personal cellphones for work-related communications or did so only with other Hormel employees. The custodians further argued that Plaintiffs failed to show that they were likely to have responsive documents and that the searches were overly broad and unduly burdensome, and there was disagreement about who would bear the costs of the proposed searches if they were undertaken. Id. at *3.

Because the parties and the custodians could not reach agreement, Plaintiffs filed this motion seeking to compel Hormel and the custodians to produce the relevant text messages. Plaintiffs also sought a declaration that Hormel had the obligation from the outset of the litigation to image text message content from all of its custodians’ mobile devices and cloud backups and an order for Hormel to do so at this point.

Magistrate Judge Bowbeer began her analysis by examining whether Hormel had the requisite possession, custody, or control over the text messages sent by and to its employees on their personal cellphones, a point that Hormel disputed. Magistrate Judge Bowbeer stated that district courts in the Eighth Circuit applied varying definitions of “control.” Some have interpreted “control” to mean the legal right to obtain the documents, while other courts (including the District of Minnesota) have held that it also includes the “practical ability” to obtain the documents. Magistrate Judge Bowbeer stated that in this latter case, “the burden of demonstrating that the party from whom discovery is sought has the practical ability to obtain the documents at issue lies with the party seeking discovery.” Id. at *4. She continued:

In assessing whether a party has the practical ability to obtain documents from a non-party, courts have focused on the “mutuality” of the responding party’s relationship with the document owner, including whether the documents sought are considered records which the party is apt to request and obtain in the normal course of business, or whether the prior history of the case demonstrates cooperation by the non-party, including the production of documents and other assistance in conducting discovery, and the non-party has a financial interest in the outcome of the litigation.

Magistrate Judge Bowbeer stated that the Eighth Circuit never decided whether the “legal right” or “practical ability” standard should apply, and other circuits were split on the issue. She cited the Sedona Conference’s commentary urging the “adoption of a consistent, reliable, objective approach that defined control as the legal right to obtain and produce the Documents and ESI on demand.” Id. (internal quotations omitted). She continued that the Sedona Conference criticized the “practical ability” standard as inherently vague, unevenly applied, and having the potential to lead to disparate, futile, and inconsistent results. The commentary elaborated on the futility, noting that even if a court ordered an employer to collect and produce personal emails of its employees, there was not necessarily authority under which an employer could force the employees to turn them over. However, Magistrate Judge Bowbeer noted a potential counterargument that if a party routinely obtained certain kinds of documents in the ordinary course of business and might have even leveraged that access for use in the litigation, “fairness would require that it also be required to do so for purposes of responding to discovery.”

Magistrate Judge Bowbeer determined that she did not have to choose between the two standards because Plaintiffs had not shown that Hormel had control. Plaintiffs argued that Hormel had control of the custodians’ personal text messages because it required employees to use their cellphones to conduct business, and Hormel controlled all data on the phones, including the ability to wipe all data on personally owned phones when it deemed it necessary. Hormel responded that it did not have the legal authority to access, view, image, or control the text messages and therefore lacked control.

Magistrate Judge Bowbeer explained that Hormel’s BYOD policy allowed employees to use their personal cellphones to interact with Hormel’s corporate systems and for employees to be reimbursed for their mobile plan. Id. at *5. She stated that Hormel claimed ownership of data synced between mobile devices and Hormel’s servers, which included primarily company email, calendars, and contacts but not text messages or information on the personal devices. Hormel required employees to install the MobileIron app on their phones, which prevented employees from copying or backing up Hormel-owned data on their phone. It did not, however, affect employees’ ability to copy, delete, or back up text messages or enable Hormel to access those text messages. The BYOD policy allowed Hormel to remotely remove MobileIron and the company data it controlled and allowed the company to remotely wipe all the data on the phone through a factory reset.

Magistrate Judge Bowbeer stated that Plaintiffs misconstrued the BYOD policy to mean that Hormel employees were required to use their personal cellphones for business. In reality, employees had to request Hormel’s permission to use a personal device to access Hormel’s system and be reimbursed for their mobile plan. Requests were approved if the employee had a defined business need.

Magistrate Judge Bowbeer also disagreed with Plaintiffs’ argument that the ability to remotely wipe phones gave Hormel control over employees’ text messages. Hormel did not have access to text messages. While Hormel could perform a remote factory reset in the event of a security concern under some circumstances, the BYOD policy only asserted Hormel’s control over company data. Magistrate Judge Bowbeer noted the Sedona Conference’s position that an employer with a BYOD policy “does not legally control personal text messages … when the policy does not assert employer ownership over the texts and the employer cannot legally demand access to the texts.” She distinguished cases cited by Plaintiffs by pointing out that the cases did not involve the company’s control over personal text messages and did not suggest that the company had ownership over them. Id. at *6.

Magistrate Judge Bowbeer then disagreed with Plaintiffs’ argument that Hormel had the practical ability to demand access to its employees’ text messages because Hormel had previously asked for and received permission to image the personal cellphones of five executives. She distinguished the request for data from the demand for data that would give Hormel “control.” While Magistrate Judge Bowbeer acknowledged the power dynamic that might pressure employees to accede to an employer’s request, she stated that control instead referred to where access would be provided in the ordinary course of business. She found that there was “no evidence that in the ordinary course of business Hormel seeks, needs, or expects to gain access to the content of employees’ text messages on their personally-owned phones.” Id. at *7. The employees who agreed to have their phones imaged did not establish that Hormel had the practical ability to demand that it be allowed to inspect or produce the data or that other employees would agree to do so.

Magistrate Judge Bowbeer continued that the fact that Hormel employees willingly disclosed the extent they conducted company business over text message did not establish a practical ability to demand that data be turned over to Hormel. While Hormel had a legal right to demand company data within a text message, Magistrate Judge Bowbeer explained that Plaintiffs were “demanding … that Hormel leverage that putative right in order to demand access to all text messages so that it can review and produce those deemed responsive to discovery in this case, regardless of whether they include company data over which Hormel claims ownership per the BYOD policy.” Magistrate Judge Bowbeer stated that she “shares the Sedona Conference’s view that organizations should not be compelled to terminate or threaten employees who refuse to turn over their devices for preservation or collection.” Id. (quoting 19 Sedona Conf. J. at 531).

Ultimately, Magistrate Judge Bowbeer denied Plaintiffs’ motion to compel Hormel to collect, review, and produce responsive text messages on its employees’ personal cellphones. Id. at *7.

Magistrate Judge Bowbeer next addressed Plaintiffs’ motion to enforce their subpoenas for the custodians’ text messages. She first laid out the scope of discovery under a Rule 45 subpoena and each party’s evidentiary burden. Id. at *7-8. She then evaluated the objections made by the custodians in turn. Id. at *9.

First, Magistrate Judge Bowbeer evaluated whether the custodians had adequately demonstrated that they did not have responsive texts. She explained that courts will deny motions to compel where the “evidence shows that the responding party has searched for the information but cannot find it or disclaims its existence after the search, and the movant shows no evidence to suggest the information exists.” Magistrate Judge Bowbeer explained that this standard “strikes a balance between two interests in discovery:” a responding party’s duty under the Federal Rules of Civil Procedure to “affirmatively, reasonably search for responsive information available to it” and that “the Court must accept, at face value, a party’s representation that it has fully produced all materials that are discoverable.” Id. at *10 (internal quotations omitted). 

Magistrate Judge Bowbeer found that she “cannot conclude from the responses that adequate steps were taken to describe to the custodians what kinds of communications might be relevant and responsive information in the context of this complex litigation, or to test the accuracy of their recall about whether, at some point over the relevant period or periods, they sent or received relevant or responsive texts.” The one exception to this was the one employee who unequivocally stated that she never used her personal cellphones for work-related communications. Magistrate Judge Bowbeer acknowledged that the evidence that there were responsive texts was weak; while Plaintiffs declared that telephone records showed several custodians texting work-related contacts, the records did not show that the communications were work-related, let alone relevant to the claims or defenses of this lawsuit. Plaintiffs also argued that some custodians were more likely to have responsive texts by the nature of their work and that some had suggested in their subpoena responses that they used text messaging for work to some degree.

Magistrate Judge Bowbeer concluded that she would not enforce the subpoena against the one employee who clearly stated that she never used her personal phone for work-related texts provided she submitted a sworn declaration. For the remaining custodians, however, Magistrate Judge Bowbeer found that the inquiries by counsel to the custodians did not adequately demonstrate a reasonable search for responsive texts such that the court could conclude that such texts were “almost certainly nonexistent.” She stated that the custodians either admitted they used their personal phones for some work-related communications or made no statement on the matter. Further, it did not appear that custodians were asked only to rely on their memories when asked if there were responsive communications, and their memories were not tested, nor was the scope of responsive communications clarified. Therefore, Magistrate Judge Bowbeer found that the evidence did not show a reasonable search or that responsive texts were almost certainly nonexistent, and therefore she could not decline to enforce the subpoenas on the remaining custodians. Id. at *11.

Magistrate Judge Bowbeer next overruled the objection that the information sought was equally available from cellphone providers. While the providers showed that certain of the custodians had texted one another, they did not show the content of any texts, and the carrier data would not reveal iMessage to iMessage content that was available only on the custodians’ iPhones. Because the custodians failed to provide concrete support for the claim that responsive text messages would be available from another source, Magistrate Judge Bowbeer found that the record did not substantiate the objection.

Magistrate Judge Bowbeer then addressed the objection that the imposition of the request for cellphone data imposed an undue burden on the custodians that was disproportionate to the needs of the case. She laid out the rules on proportionality under Rule 45 before addressing the custodians’ arguments surrounding the burden. Id. at *11-12. First, the custodians alleged that the imaging would cost an estimated $65,000 to $85,000 and take between three hours and more than a day, and some custodians would have to mail their phones from rural Minnesota to the forensic imaging provider. Id. at *12. Further, imaging would capture private and confidential information not relevant to the case.

Magistrate Judge Bowbeer pointed out that there were no affidavits or evidence establishing the technical concerns surrounding the imaging or that the phones would need to be imaged in their entirety rather than having the text messages extracted “more economically.” Additionally, phones that were not in use in the relevant time period would not need to be imaged. Magistrate Judge Bowbeer stated that the custodians acknowledged they did not know how many relevant texts would be captured and reviewed under the Plaintiffs’ search methods and had not proposed an alternate means to capture and filter the data more effectively. 

Magistrate Judge Bowbeer agreed that the cost to the custodians was high, but she determined to compel the custodians to search for and produce text messages within certain parameters and to preserve data in the event the searches were expanded. Magistrate Judge Bowbeer also exercised her discretion to order the reasonable costs be split between the class Plaintiffs and Hormel. Id. at *13. She justified the cost-sharing by pointing to Rule 45(d)(1) placing on the party serving the subpoena “the obligation to avoid imposing undue burden or expense on the person subject to the subpoena” and to Hormel’s BYOD policy that allowed and, to some extent, financially supported the use of personal cellphones for work purposes.

Magistrate Judge Bowbeer was not convinced that any custodians would need to mail in a phone as opposed to dropping it off in person and so could not sustain these aspects of the burden to the custodians, emphasizing their obligation to diligently explore alternatives that would reduce that burden. She also maintained that any privacy concerns could be managed through targeted searches and were not a basis to decline to enforce the subpoenas. She cited Plaintiffs’ argument that forensic imaging vendors can target specific apps or types of data, and the custodians made no argument that they tried and failed to find options for more targeted data extraction. Additionally, her order would “provide that only relevant and responsive information will be delivered to Plaintiffs” and the information would be subject to a protective order.

Magistrate Judge Bowbeer did conclude that the requests in the subpoenas “extend[ed] beyond the bounds of relevance” and therefore had to be “narrowed to target relevant and proportional information.” Among other things, she observed that one request did not actually seek texts but rather any information accessible to a forensic vendor, including cloud backups, older cellphones, or noninternet archives, without regard to subject matter.

A key element of Plaintiffs’ argument was that all texts between any defendant or Hormel affiliate and any of the 781 numbers associated with the defendants, Hormel affiliates, and pork producers were presumptively relevant. Id. at *14. While Magistrate Judge Bowbeer agreed that some information in the requests were relevant, including that relevant information could be found on old cellphones and in cloud backups, she stated that “not all texts to all individuals on the 781 phone numbers connected to Defendants and pork integrators will involve this subject matter.” She stated that “[j]ust because there may be some relevant texts within a data set does not make all texts within that set presumptively relevant.” She extended this reasoning to the requests demanding access to all archived text messaging data from all the custodians’ phones.

Magistrate Judge Bowbeer objected to the time period of the requested production, over 10 years, as “not tailored to the job responsibilities of the individual custodians, and therefore also … overly broad.” Because Plaintiffs ignored distinctions in the job duties or dates for individual custodians in favor of a “one size fits all” approach, she found the time period inappropriate and not proportional.

Magistrate Judge Bowbeer accordingly held that the subpoenas would be enforced as to the requests at issue except for the one excluded custodian and ordered the remaining custodians to search for and produce relevant text messages within a modified scope and subject to a modified search protocol. Id. at *15. She held that each subpoena must be limited to the time period or periods within which that custodian held the relevant position and required Plaintiffs, Hormel, and the custodians’ counsel to meet and confer to confirm they had a common understanding on that front. Then, the custodians must search the text messaging data from the custodians’ current and older phones or archive and backup data from those phones to identify the texts exchanged among the 781 phone numbers identified by Plaintiffs within the relevant time periods for each custodian, and report the number to Plaintiffs’ counsel. Counsel to the custodians could then undergo a relevance search and “meet and confer with Plaintiffs’ counsel about a threshold volume of messages for a custodian that would trigger the application of search terms.” The results of any application of search terms could be further reviewed for relevance.

Magistrate Judge Bowbeer ordered the custodians, including the excluded custodian, to preserve all text messaging data, including archived and cloud-stored data, for the relevant time period until December 2022 in the event that the resulting productions or other future discovery justify a more expanded search.

Finally, Magistrate Judge Bowbeer addressed Plaintiffs’ claim that Hormel knew or should have known that its custodians were conducting work-related business over text and therefore was obligated to image those phones and preserve cloud backups at the start of litigation. After laying out the standards for preserving relevant evidence, she denied Plaintiffs’ motion for a declaration that Hormel had such a duty, reasoning that she had already found that Hormel did not control the texts on the custodians’ personal phones and did communicate litigation holds to reasonably anticipated custodians.

2. An order from the U.S. District Court for the District of Colorado sanctioning the Defendant and its counsel for failing to preserve certain text messages and then misrepresenting to the court that the messages were being produced.

In ORP Surgical, LLP v. Howmedica Osteonics Corp., No. 1:20-cv-01450-RBJ, 2022 WL 1468115 (D. Colo. May 10, 2022), Senior U.S. District Judge R. Brooke Jackson sanctioned the Defendant and its counsel for failing to preserve certain text messages and then representing to the court that the messages were being produced when not all of them were.

This case involved claims and counterclaims for breach of contract and other causes of action related to two contracts under which Plaintiff sold Defendant’s medical products on commission. Because of the volume and antagonistic nature of the discovery disputes that occurred, the court appointed a special master to assist in managing the discovery process. Among other discovery issues addressed by the special master was whether Defendant failed to preserve text messages from its vice president in charge of the relationship, Adam Jacobs, and one of its sales managers, Michael Bonessi.

In one of his reports, the special master found that Defendant did not fulfill its duty to preserve and protect Jacobs and Bonessi’s text messages, including text messages with certain of Plaintiff’s sales representatives. Id. at *12. He recommended spoilation sanctions including that a negative inference be drawn, but he also recommended that the sanctions be reduced if the relevant text messages were recovered from other phones. At that time, and based on Defendant’s counsel’s representation that all texts between the sales representatives and Jacobs and/or Bonessi were being produced, Judge Jackson declined to impose sanctions.

Plaintiffs later claimed that despite Defendant’s representation, it did not produce all of the text messages between the sales representatives and Jacobs and Bonessi because counsel had (1) stripped the messages of all images and attachments, (2) not produced text messages from another of its employees, and (3) left a suspicious gap in a message chain involving Jacobs. Id. at *13. Defendant denied that it failed to produce any text messages and claimed that any late production resulted from technical difficulties.

After considering all the evidence and arguments, Judge Jackson found that Defendant failed to meet some of its preservation obligations and that Defendant’s counsel turned the case “sour with nasty litigation tactics” and “played fast and loose” with discovery obligations. He agreed with the special master that Defendant’s failure to preserve text messages was either willful misconduct or gross negligence. Judge Jackson also found that the representation by Defendant’s counsel that all texts between the sales representatives and Jacobs and/or Bonessi were being produced was untrue.

Judge Jackson next addressed the appropriate sanction for Defendant’s and counsel’s conduct. Id. at *14. He agreed with the special master’s observation that the sanctions “should have teeth” but disagreed regarding the import of that observation. The special master recommended presuming a pivotal fact at trial, admittedly “a severe sanction.” Judge Jackson noted that obligating Defendant to reimburse two-thirds of Plaintiff’s special master costs would be insufficient, as would requiring Defendant to reimburse Plaintiffs’ attorneys fees (because the parties’ contract already requires such reimbursement). Judge Jackson noted that another potential sanction, trebling the award of attorney’s fees, was excessive in the context that Defendant was already required to pay Plaintiffs’ attorney’s fees.

Ultimately, Judge Jackson ordered Defendant and its counsel to reimburse Plaintiff for the full amount of Plaintiffs’ share of the special master’s fees and costs, with Defendant paying half of the reimbursement for its failure to preserve text messages, and Defendant’s counsel paying the other half for its misconduct during the discovery process. The court also admonished counsel because although the parties were entitled to zealous advocacy from their outside counsel and from their inside corporate attorneys, “zealous advocacy does not justify abusive conduct or hiding the ball.”

3. A decision from the U.S. District Court for the Northern District of Illinois imposing curative measures in the form of findings of fact that would be read to the jury detailing the circumstances of the defendant’s spoliation of video recording evidence and the potential inferences the jury could draw from those circumstances.

In Hollis v. CEVA Logistics U.S., Inc., No. 19 CV 50135, --- F. Supp. 3d ---- (N.D. Ill. May 19, 2022), U.S. District Judge Iain D. Johnston imposed curative measures in the form of findings of fact that would be read to the jury detailing the circumstances of Defendant’s spoliation of video recording evidence and the potential inferences the jury could draw from those circumstances.

This wrongful termination case resulted from an alleged physical altercation at Defendant’s warehouse that resulted in Plaintiff’s termination. Id. at *1. Defendant fired Plaintiff based on descriptions of the alleged altercation from three white witnesses that Plaintiff assaulted another employee, while African American witnesses gave different descriptions of the alleged altercation and stated that Plaintiff did not assault the other employee. The evidence reflected that three video cameras were aimed at the area where the altercation took place and that Plaintiff had requested orally and in writing that the Defendant view the video footage. Id. at *2. Plaintiff filed a letter of complaint with Defendant, followed by a charge of discrimination with the Equal Employment Opportunity Commission, and, later, filed this litigation.

During discovery, Plaintiff served discovery requests seeking the video recordings and the identity of the custodian of the video. Defendant responded to this discovery by stating that no video existed and that the custodian of the video recordings was Unisight, a third-party vendor. But in a deposition, a representative of Unisight testified that it was never the custodian of footage from Defendant’s plant, that Unisight merely sold the recording equipment, and that Defendant owned and operated the system and recordings. Recordings on Defendant’s security camera equipment are normally retained between 30 and 90 days. In addition, the evidence reflected that Plaintiff’s supervisor had pulled and reviewed video footage related to a different incident before Plaintiff’s termination. 

Judge Johnston began his analysis with a review of Federal Rule of Civil Procedure 37(e), which “provides the sole source to address the loss of relevant ESI that was required to be preserved but was not because reasonable steps were not taken, resulting in prejudice to the opposing party.” He explained that Rule 37(e) has five threshold requirements: (1) the information must be ESI; (2) there must have been anticipated or actual litigation that triggers the duty to preserve ESI; (3) the relevant ESI should have been preserved at the time of the litigation was anticipated or ongoing; (4) the ESI must have been lost because a party failed to take reasonable steps to preserve it; and (5) the lost ESI cannot be restored or replaced through additional discovery. Id. (citing Fed. R. Civ. P. 37(e)). Judge Johnston noted that if any of these requirements are not met, then curative measures and sanctions are unavailable under Rule 37(e), but if they are all met then the court must determine whether the party seeking the ESI has suffered prejudice or whether the party with possession, custody, or control of the ESI intended to deprive the seeking party of the ESI. If prejudice but not intent exists, the court may impose curative measures, including but not limited to an instruction that jurors may consider the circumstances surrounding the loss of the ESI. If intent exists, the court can impose sanctions, including presuming that the information was unfavorable, instructing the jury to presume the information was unfavorable, or entering dismissal or default.

Judge Johnston reviewed each of the five threshold requirements under Rule 7(e), starting with whether the information was ESI. Defendant argued that there was no evidence that video of the incident ever existed and that a party has no obligation to produce information that does not exist. Id. at *3. However, Judge Johnston rejected Defendant’s argument that the burden of proof fell on Plaintiff to prove that the video existed. While he acknowledged that some case law supported the contention that the party seeking relief bears the burden of establishing that video footage existed, he was not convinced that the burden to establish that ESI ever existed falls on the movant. He noted that “[b]urdens of proof generally fall on the party with better access to the information.” Judge Johnston found that Defendant knew Plaintiff had requested a review of the video recordings, but there was no evidence of any effort to determine whether the video recording existed. He also found that, once alerted, determining whether video of the incident was recorded fell within the sole control of Defendant.

But Judge Johnston found that even if the burden were to fall on Plaintiff, he had met that burden by adducing evidence that the security camera system was working in the weeks before the alleged incident and that a supervisor knew how to access the recordings and obtained and reviewed video recordings as part of his investigation of an unrelated incident. Id. at *4. Judge Johnston also noted the absence of any evidence that Defendant’s cameras were not operating or were prevented from recording the event. Based on this record, Judge Johnston found that video of the alleged incident was recorded and therefore was ESI.

Judge Johnston next turned to the question of whether there was a duty to preserve the ESI, which he noted is based on common law and is triggered when litigation is commenced or reasonably anticipated. Whether a duty to preserve has arisen is an objective inquiry, viewed from the perspective of the defendant at the time. Judge Johnston found that Defendant’s knowledge of the incident on its premises, its termination of Plaintiff for his role in the incident, and Plaintiff’s letter alerting Defendant to his allegation of discrimination and that video of the incident would be relevant to determining what occurred triggered a duty to preserve any video of the incident that existed. Under these facts, litigation was reasonably anticipated.

Judge Johnston then addressed whether the ESI was relevant. Id. at *5. He noted that the burden to show relevance under Federal Rule of Civil Procedure 26(b)(1) is not high and is tempered further by the principle that the party with access to the proofs generally bears the burden on an issue. In the context of spoliation, the party seeking sanctions does not have access to all the necessary proof, in large part, because the other side spoliated it. Judge Johnston determined that the video evidence was relevant to whether Plaintiff engaged in the conduct for which he was fired or whether allegations of the conduct were merely pretext for discrimination.

With respect to whether the ESI was lost because Defendant failed to take reasonable steps to preserve it, Judge Johnston reiterated that burdens of proof generally fall on the party with better access to information. But, regardless of which party bears the burden, Judge Johnston found that there was no evidence that Defendant had ever intervened to stop its security system from proceeding as designed and discarding any video recordings after 30 to 90 days, even after Plaintiff alerted Defendant to the relevance and potential importance of any footage that had been recorded. Id. at *6. As a result, Judge Johnston concluded that Defendant did not take any steps, let alone reasonable steps, to preserve any security footage after learning about the incident.

Judge Johnston also found that the lost video recordings could not be restored or replaced. In making this finding, he noted the lack of evidence that the video recording could be restored or replaced. He rejected Defendant’s argument that statements of witnesses could serve as a substitute for the security footage, because obtaining statements from witnesses is not what Rule 37(e) meant by “restored or replaced through additional discovery.”

Finally, Judge Johnston addressed the questions of intent and prejudice. He noted that if there was intent to deprive Plaintiff of the video evidence, then he may impose sanctions such as adverse jury instructions, default, or dismissal, and if intent is established, then prejudice is presumed. On the other hand, to obtain curative measures under Fed. R. Civ. P. 37(e)(1), only prejudice needs to exist. With respect to prejudice, courts evaluate prejudice in the context of determining the harm inflicted by the nonexistence of relevant information, including the thwarting of a party’s ability to obtain the evidence it needs for its case. Id. at *7. Judge Johnston found prejudice because while the witness testimony was mixed, definitive proof would have been recorded by Defendant’s security cameras aimed at the scene. The loss of the video evidence left Plaintiff unable to obtain the video of the incident he needed for his case, and the loss of ESI has prejudiced him as that term is used under Rule 37(e).

Turning to intent, Judge Johnston noted that intent is difficult for a moving party to prove and for a court to find, in part because the evidence used to establish intent is almost always circumstantial. However, he noted that plenty of evidence exists in the record that could lead a reasonable person to conclude that Defendant acted with intent, including that Defendant did nothing in response to Plaintiff’s request for the video. Judge Johnston referenced a prior finding on Defendant’s motion for summary judgment that “[t]he inference that can be drawn is that the investigators did not want to know what the video might show; that they preferred to make their decision using only the witness statements and interviews and to make their determination of witness credibility based on factors other than what they might have been able to see with their own eyes by viewing the video. Deciding to ignore the video is not a decision likely to be made by investigators seeking the truth.” Judge Johnston also noted that Defendant’s inaccurate statements regarding the custodian of the video recordings could lead a reasonable person to conclude that Defendant’s response was an attempt to deflect attention away from its own intentional conduct of allowing the automatic deletion of the video. Id. at *8.

However, Judge Johnston ultimately declined to make a finding regarding intent and left that determination to the jury. He stated that the jury could find that the failure to pull, preserve, and peruse the video recordings was not intentional, noting that “[h]umans are just as likely to be dimwitted as they are dastardly.”

While Judge Johnston declined to impose sanctions, he did impose curative measures. In the words of Judge Johnston, “[t]he common, pedestrian step of determining if a video recording of an event exists, and if so, observing and preserving it to be used in an investigation, makes [Defendant’s] unexplained and cavalier failure to take these steps — in the face of explicit and repeated requests from a terminated employee, no less — all the more troubling and deserving of a curative measure.” Id. at *1.

A common curative measure is instructing the jury that it can consider the circumstances surrounding the loss of the ESI. Id. at *8. Judge Johnston decided to provide factual findings to the jury along with an instruction as to how to apply that factual finding under Rule 37(e), including the circumstances regarding Plaintiff’s request for a review of the video, Defendant’s inaccurate statements regarding the custodian of the security footage, and Defendant’s prior review of video footage related to a different incident. Id. at *9.

4. An opinion from the U.S. District Court for the District of New Mexico denying motions to exclude the testimony of two experts proposed by the government: a forensic examiner knowledgeable about extracting digital files and a special agent knowledgeable about identification and attribution of internet identities.

In United States v. Pena, No. 20-CR-01903 MV, 2022 WL 1175184 (D.N.M. April 20, 2022), U.S. District Judge Martha Vázquez denied Defendant’s Daubert motion to exclude the testimony of two experts proposed by the government: a forensic examiner knowledgeable about extracting digital files and a special agent knowledgeable about identification and attribution of internet identities. 

In connection with a criminal indictment of the defendant, the government filed a notice of intent to offer expert testimony (Notice) identifying six experts the government sought to offer, including Byron French, a forensic examiner, and Jacob Joel vanBrandwijk, a special agent. Id. at *1. Defendant opposed the Notice under Daubert v. Merrell Down Pharmaceuticals, Inc., 509 U.S. 579 (1993). Id. at *2.

Judge Vázquez first addressed the timeliness and specificity of the Notice before turning to the admissibility of the proposed expert testimony. Defendant argued that the government provided only a minimal basis for evaluating the proposed testimony of experts French and vanBrandwijk and asked the court to “exercise its gatekeeping function by holding a Daubert hearing” and to deny the government’s motion for admission of the testimony of these experts. Id. at *5. The government argued that the proposed expert testimony and evidence should be allowed and was admissible because it “has a reliable basis in the knowledge and experience in each of their specialized fields.” Id. at *6. 

Judge Vázquez presented the requirements for admissibility of expert testimony under Rule 702 of the Federal Rules of Evidence and Daubert, citing also to Kunho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999), which “extended the holding in Daubert such that the trial judge’s gatekeeping function applies not only to testimony based on scientific knowledge but also to testimony based on technical and other specialized knowledge.” 

Judge Vázquez then addressed the government’s proposed testimony from French in the area of computer forensics and forensic data acquisition and analysis, in particular the extraction of media files from cellphones for examination and analysis. Id. at *7. Judge Vázquez stated that French was qualified to serve as an expert witness in this regard. Citing French’s resume, Judge Vázquez stated that French had worked as a computer forensic examiner for eight years, had a significant number of certifications, and had participated in an extensive list of forensics trainings. Further, French had analyzed over 107 terabytes of computer media, DVR, and cellphone data in support of over 141 cases since 2014. Judge Vázquez found this “more than sufficient to demonstrate that he has the requisite qualifications to serve as an expert witness.”

Judge Vázquez found that French’s proposed testimony, about the forensic extraction and examination process generally, was relevant. Id. at *8. Judge Vázquez agreed with the government’s argument that the use of “extraction tools is not generally within the purview of average jurors.” Judge Vázquez described this as “go[ing] to the heart of the relevancy inquiry” and stated that French’s proposed testimony was directly relevant to the basis of the charges against Defendant. Judge Vázquez highlighted French’s proposed testimony that video files found on an LG cellphone and an Apple iPod Touch were separate files rather than a longer, single video file that was broken into separate files.

Judge Vázquez also found French’s proposed testimony reliable. Defendant argued that the government’s Notice contained insufficient information to explain how French’s examination of hash values led him to opine that videos were created separately rather than being a single video file. Defendant also cited a statement by French suggesting he “could not say whether or not there was a single … original file from which all the others were derivative.” The government responded that whether the videos could be one large file that was broken into smaller files was ultimately an issue for the jury to weigh. 

Judge Vázquez listed relevant statements at the Daubert hearing to support her reasoning. First, French stated he did not believe the videos at issue were subparts of a larger file. Then, on cross-examination, French conceded that it was possible the videos were subparts of a longer file but that it was not likely. French also stated that a subset of images were unique files, based on the create time, naming convention, and MD5 hash. On redirect, French stated that he saw no indication from the video’s metadata that the existing videos had been subdivided from a larger video. 

Judge Vázquez concluded that “while Mr. French cannot opine with absolute certainty that the videos at issue were not subparts of a larger single video file, he should not be barred from opining that it is his expert opinion that each video file is a separate creation.” Id. (internal quotations omitted). Judge Vázquez stated that the “law does not require experts to testify with absolute certainty” and “gaps in an expert witness’s qualifications or knowledge generally go to the weight of the witness’s testimony, not its admissibility.” Id. (internal citations and quotations omitted). Therefore, Judge Vázquez stated that the challenges regarding the creation of the video went to the weight of the evidence rather than its admissibility. Judge Vázquez accordingly held that French’s proposed testimony was admissible. 

Judge Vázquez then turned to her analysis of the admissibility of vanBrandwijk’s testimony regarding the attribution of internet identities (i.e., whether a particular internet identity belonged to Defendant). Id. at *9. Judge Vázquez found vanBrandwijk’s qualifications “more than sufficient,” noting his bachelor’s degrees in computer science and mathematics and master’s degree in information assurance. In addition, vanBrandwijk had worked in cybersecurity since 2004 and worked as an FBI special agent investigating cybercrimes since 2017. Judge Vázquez further stated that vanBrandwijk’s testimony at the Daubert hearing “demonstrated a deep knowledge of the practice of the attribution of internet identities.”

Judge Vázquez continued that vanBrandwijk’s proposed testimony was relevant. She stated that “his testimony on the use of IP addresses as an investigative tool is beyond the ken of the average juror.” Id. (internal quotations omitted). Judge Vázquez added that his opinion that the same device was behind two relevant Facebook accounts was “highly relevant to and probative of [Defendant]’s possible guilt.” Judge Vázquez also stated that Defendant’s argument that reliable principles and methods to attribute internet identities are not widely known “only serves to underscore the importance and relevance of expert testimony in such a specialized field of knowledge.”

Judge Vázquez also found vanBrandwijk’s proposed testimony reliable. Defendant argued at the Daubert hearing that vanBrandwijk had insufficient data to conclude that the two relevant Facebook profiles came from the same device and that he had reviewed data from only three Facebook profiles to reach his expert opinion. Defendant added that there were potentially additional profiles that would be linked to the same device that were never requested. Judge Vázquez agreed with the government’s counter that these questions were “fair points of inquiry for cross-examination, but go more to weight as opposed to the admissibility of the special agent’s proposed expert testimony.” Id. (internal quotations omitted). While vanBrandwijk would not be able to opine on whether other profiles were also linked to the device in question, Judge Vázquez stated there was no reason he could not form expert opinions on the data he did analyze.

Judge Vázquez stated that vanBrandwijk testified that he used Facebook business records to identify instances where the IP addresses used by three Facebook accounts overlapped. Id. at *10. He “correlated this data using Excel, used the American Registry of Internet Number[s] to determine that multiple devices were not associated with the same IP address, and then identified 53 separate instances of overlap between the IP addresses accessed by the” two relevant Facebook accounts. VanBrandwijk found no indication that the IP addresses had not been hijacked and concluded that the repeated overlap of the IP address for over a year indicated that the same device was being used to access both accounts. Judge Vázquez found this testimony to be based on sufficient facts or data and the product of reliable principles and methods.

Judge Vázquez provided a constraint to vanBrandwijk’s proposed testimony with respect to the opinion that the same user was behind the two Facebook accounts. The government conceded at the Daubert hearing that he could only opine that the same device was behind the two accounts, and so Judge Vázquez limited the testimony accordingly. She then held that vanBrandwijk’s proposed testimony was admissible subject to the one constraint.