eDiscovery Law: Courts and Emerging ESI

Author

Candace Fry

Candace Fry joined the world of e-discovery in 2016, learning the ins-and-outs of multiple RMBS cases.Throughout the RMBS cases Candace has been involved in, she has led teams doing first level review of documents as well as quality control and chronology review. In the chronology reviews, she has helped identify, describe, and place the most important documents in RMBS cases on a timeline for the client to identify key documents and have a firmer understanding of the events of the case.

She has skills in team management, budget tracking and projections, privilege reviews and logs, and quality control. She has managed projects that were co-sited in up to 9 different cities and had combined teams of up to 200 reviewers. Candace is a licensed attorney in good standing with the Arizona Bar. Additionally, she is certified as a Lean Six Sigma yellow belt.

We see technology continuing to expand in our everyday lives. From receiving email on our phones to using social media or chat apps to drones to physical activity trackers, the ways that electronic data can be created and stored are ever-expanding, and the legal world must continue adapting by understanding how to discover and use that data for our clients.

Text Messages

Discovery requests that are relevant and proportional to the needs of the case are likely to be enforced in litigation. The right to privacy is not a defense to relinquishing documents. While text messages and other data may be private, courts will generally require that parties hand over relevant information regardless of the format.

In Lawrence v. Rocktenn CP LLC, No. 16-821, 2017 WL 2951624 (W.D. La. April 19, 2017), the defendant requested text messages, among other evidence, regarding the incident. The plaintiff claimed it was an invasion of privacy, but the court granted the motion to compel because the information was highly relevant. Additionally, in Ronnie Van Zant, Inc. v. Pyle, No. 17 Civ. 3360 (S.D.N.Y. Aug. 28, 2017), the plaintiff sought text messages from a non-party who was had a close working relationship with the defendant and had been involved in the litigation. This non-party switched mobile phone carriers during the litigation and did not save relevant text messages and photos. The court found that the non-party had control over these documents, should have known that they were relevant to the litigation, and should have saved this information. The court ruled in favor of the plaintiffs, allowing an adverse inference instruction for the jury. A similar decision was reached in Montgomery v. Iron Rooster-Annapolis, 2017 U.S. Dist. LEXIS 71338 (D. Md. May 9, 2017), where plaintiff failed to preserve text messages, and the phone malfunctioned two months after being aware of the need to preserve.

Social Media

Social media content is not provided any special protection from discovery. Courts will compel discovery of posts and other data from those sites that is likely to produce discoverable content. However, courts will generally not require individuals to turn over passwords. See e.g., Marsteller v. Butterfield 8 Stamford LLC, No. 14-1371, 2017 U.S. Dist. LEXIS 194482, at 9 (D. Conn. Nov. 27, 2017); Brown v. City of Ferguson, No. 15-831, 2017 U.S. Dist. LEXIS 11210 (E.D. Mo. Jan. 27, 2017).

The court ruled in favor of the defendant’s discovery request for Facebook postings in Lawrence v. Rocktenn CP LLC, No. 16-821, 2017 U.S. Dist. LEXIS 167971, at 7 (W.D. La. Apr. 19, 2017) because the request was subject-matter and time limited. However, overbroad requests for all social media history will not be enforced because the huge scope of data is unlikely to produce relevant information. See Gordon v. T.G.R. Logistics, Inc., No. 16-238, 2017 U.S. District LEXIS 7978, at 14 (D. Wy. May 10, 2017) (court limited discovery to the relevant time period).

Drones

States have restrictive laws on the use of evidence obtained by drones in order to comply with the Fourth Amendment and citizens’ right to privacy. In many states, law enforcement must have a warrant to be able to use a drone to collect evidence. In Kentucky, the warrant issued to police must specifically authorize use of a drone. KY Rev. Stat. 500.130 Operation of unmanned aircraft system — Citizens’ Freedom from Unwarranted Surveillance Act. (Kentucky Revised Statutes (2018 Edition)). Additionally, if offering evidence from a recreational drone, the drone must have been operated in accordance with 14 C.F.R. pt. 101, which requires the drone to stay in the operator’s line of sight. See id.

In Tennessee, evidence obtained through lawful use of a drone by law enforcement cannot be used as probable cause for an individual that was not on the search warrant. Tenn. Code 39-13-609 Freedom from Unwarranted Surveillance Act — Use of drones to gather evidence or information — Standing to initiate civil action against law enforcement agency (Tennessee Code (2018 Edition)). This law is in place even though current case law would seem to support this use of a drone. See Florida v. Riley where a police helicopter flew 400 feet above a residential greenhouse to observe contraband which was not an unreasonable search because it was visible to the naked eye in public airspace. However, the decisions of the Supreme Court relate to manned aircraft and there is no definitive ruling on the applicability of the law to unmanned aircraft. Kyllo v. United States, 533 U.S. 27 (2001)may impact the use of evidence obtained by drones as well since sense-enhancing technology has been deemed an unreasonable search. In United States v. Jones, 132 S.Ct. 945 (2012), the Supreme Court disallowed searches using the very type of equipment that might be deployed on a drone, including radio transmitters, receivers, high resolution digital video cameras, and navigation and global position tracking devices.

If you ever need to use data from a drone, you will need to determine whether it complies with your state’s statutes and developing case law.

Conclusion

The use of and enforcements of requests for some developing electronically stored data is relatively straightforward. In other areas, statutes and case law are continually developing, and litigators must continue to adapt to the changing digital environment and understand applicable law to obtain evidence.

Candace Fry is a Managing Attorney for Special Counsel. Connect with Candace via LinkedIn or email today!

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