#CaseoftheWeek Episode 51: Failing to Comply with Discovery Order

#CaseoftheWeek episode 51 is an analysis of Delotta v. S. Broward Hosp. Dist., 2021 WL 6134784 (S.D. Fla. 2021) from January 22, 2021. The decision comes from United States Magistrate Judge Alicia O. Valle.

This decision is ripe with multiple issues we discussed in 2021 in a very instructive decision including protections available for attorney work product, failure to provide mobile device with text messages, production of Facebook data and several others. 

Good morning, and welcome to our first episode of the Case of the Week for 2022. Today is January 4, 2022, and my name is Kelly Twigger. I am the the founder and CEO of eDiscovery Assistant and the principal at ESI Attorneys.

I’m so happy to be here with you today. Thanks for joining me. And all the best wishes for 2022 to be a way better year than 2021.

Speaking of which, if you follow the national news, you know that on December 30th, we had some horrific wildfires here in Boulder, just south and east of us here at eDiscovery Assistant that destroyed over 1000 homes in just about 8 hours. It was a hugely tragic event, and we are personally scrambling to help provide whatever we can for displaced families and businesses. It will be a long road to recovery.

Many of you have reached out to me to ask what you could do or where you could donate. We’re including a link to coloradogives.org. You can use that link to donate directly to victims of the wildfires. Many people are just laced home wise for a considerable period of time. Thank you for your efforts there.

Today’s decision is one that I chose because it very succinctly covers a number of the points that we have reviewed over the last year on #CaseoftheWeek. They’re all worth repeating, and it’s worth seeing them in the context of just one decision in what is essentially a very small production.

 You’ll find a link to sign up for a demo of the eDiscovery Assistant, if you’re interested in doing that, as well as a link to the 2020 Case Law Report. We’re currently working on the 2021 Case law report in conjunction with Doug Austin at eDiscovery Today.

As always, we include the issue tags for this particular decision as tagged in eDiscovery Assistant. This one includes failure to produce, mobile device, manner of production, spoliation, costs and fees, attorney work product, bad faith, audio, sanctions, text messages, adverse inference, and Facebook. A lot going on in this decision and some really good takeaways that emphasize the points that we’ve made over the last 50 episodes of #CaseoftheWeek.

What’s happening in this case? This decision is before the Court on a motion for sanctions. The underlying case brought by plaintiff included multiple counts for violations of the American Disabilities Act, the Florida Civil Rights Act, and the Consolidated Omnibus Budget Reconciliation Act of 1985. There’s not very much information in this particular decision about the underlying facts as to those counts, so that’s all the information we have.

Then the Court dives directly into the timing of the case—we’ve always discussed the timing and your timeline for the case, and your preparation for that timeline is always key.

On September 1 of 2020, the defendant filed a motion to compel answers to its first set of interrogatories and amended responses to its first request for production of documents. A couple of weeks later, on September 15, the court denied the first motion to compel as moot based on plaintiff’s representations that she had produced or was producing the requested discovery.

The September 15 order further directed plaintiff to “amend her responses and provide responsive documents within seven days from the date of the order.” On this motion, the defendant again seeks to compel production of certain discovery and asked the Court to sanction plaintiff for failure to comply with the Court’s September 15th order and for other alleged discovery violations, including plaintiff failure to produce relevant documents and the reported deletion/spoliation of electronic data.

At issue on the motion for sanctions are several distinct issues, and we’re going to go through them individually because they each provide a really good opportunity for specific takeaways.

The first is plaintiff’s refusal to produce a timeline of events that she created under the guise of attorney work product protection. The defendant sought to compel the production of a time layer of notes that she created regarding the underlying events of the litigation that it learned about at the plaintiff’s deposition. This is a document that was not produced with responsive documents, but the plaintiff testified that she created during her deposition.

The plaintiff testified that the notes were prepared by her for herself more than a year before she hired counsel. She also testified that she did not prepare these documents at her lawyer’s request or in anticipation of litigation, and as such, the Court reviewed the requirements of Rule 26(b)(3) regarding work product, which requires plaintiff to carry the burden of proving that the work product doctrine applied.

The Court found that the plaintiff had not created the timeline at the direction of counsel, and she did not file any kind of errata sheet to correct her deposition testimony that she had done so. She also found that the plaintiff had waived any potential privilege by answering questions at the deposition without objecting to privilege.

On this particular issue, just based on the facts that we have in the decision, it seems pretty clear that there wasn’t strategy around this particular document. Maybe the counsel didn’t know about it, and so there couldn’t be any strategy. But this is one particular document where it seems like there may be really good information for the defense that the plaintiff didn’t want them to have. If it was a great layout of events and it furthered the plaintiff’s case, it would seem that that would be something you would want to produce.

Perhaps that document includes information related to some of the other issues that are teed up for this particular motion. But the point is that counsel didn’t know about that document. It wasn’t planned for strategically on how to handle it at the deposition, and there was not a plan for asserting privilege around that document. That really goes to always our first point, which is plan, plan, plan. Know what you have from your client very early on and be able to provide a strategy around each individual document or set of documents that, you know, need to be protected.

The second issue raised here was about text messages and audio recordings. Plaintiff had many text messages on her mobile device, as well as audio recordings from individual employees at the hospital. Plaintiff initially agreed to produce these documents, but then later advised the defendants that she could not because her cellphone had been corrupted. When it was, she returned it to Best Buy and the text messages and recordings were no longer available.

Now, as a result of losing that cell phone, she was unable to produce data from conversations with two key witnesses or any audio recordings of the employees, but she did produce 114 text messages with one witness over a three year time period.

That’s kind of an odd way of handling mobile device data, right? I mean, how does she have 114 of the text messages over a three year period, but she lost all the other information? Was that information produced prior to her losing the phone? The question really comes about where was counsel in preserving the information on this mobile device. There are no facts in this decision as written as to the timing of when she lost the mobile device relative to the timing of hiring counsel or filing the complaint. There’s a lot of questions here that leave us with a little bit unanswered as to how we could possibly reflect on the practical implications of this decision.

As a result of losing that data, the defendant argued spoliation and requested a couple of things. They requested either sanctions for spoliation or to be allowed to redepose the plaintiff on these issues. The Court agreed that the defendant should be able to redepose the plaintiff and said that if the defendant can establish spoliation through deposition testimony or forensic analysis of the device, that they could file a future sanctions motion.

The key here really is the timing of that sanctions motion. I mean, we’ve talked about this in the past that in order to get to a sanctions motion, you want to have filed a motion to compel. You want an order from the Court of producing that information. And the defendants have done that effectively here. Now they’re saying to the Court, “well, we want sanctions, but we also recognize that we need to talk to the plaintiff further so that we can determine whether there was, in fact, spoliation of data.”

That’s the next best course, and that’s a really good tact for the defendants to take care. You want to exhaust all of the opportunities to have additional facts before you bring a full on sanctions motion. That issue is left with redeposing the plaintiff.

The next issue comes about on a Facebook post from June 1 of 2019 that purportedly was relevant. There’s no discussion in the facts of this decision as to relevance or what information was actually contained in the Facebook post. What the Court does delineate is that the plaintiff produced Facebook posts on two separate occasions and told the defendant that all of the responsive information had been produced from Facebook.

The defendant then learned during a meet and confer that plaintiff had unfriended certain people, which resulted in the deletion of significant portions and comments from her Facebook account. If you remove a friend, then that friend’s comments, that friend’s posts, anything that that friend would have shared with other folks is removed from your Facebook account. You’re essentially altering the contents of your Facebook account as it would have existed at the time that the litigation was filed. That’s a huge problem, right, because you have altered or spoliated evidence.

The defendant argued that by unfriending these individuals, the plaintiff had destroyed evidence. They also asked for an adverse inference instruction as sanction for the spoliation. The Court said, “you’re going to depose the plaintiff on these other issues. Let’s depose them on these Facebook issues. If you find information that lends towards spoliation, then you can bring that in the subsequent sanctions motion.

Again, taking the tack of going back to the plaintiff and finding out the information. From a social media perspective, that’s a huge problem and another area where counsel needs to have advised their client that one, they need to leave their social media alone and not even touch it. They shouldn’t post anything. They shouldn’t change anything. They shouldn’t unfriend anyone. Second, counsel needs to preserve that data as it exists when they’re brought on board.

It’s not clear from the facts that are delineated in this case because there are so few of them that are discussed. It feels like most of the facts that occurred prior to bringing the complaint were already locked in. That evidence and information that would have been crucial to the plaintiff’s case was already locked in to what had happened here. It would have already existed at the time that the plaintiff’s Facebook account existed.  As such, if that Facebook profile had been preserved at the outside of the case, or when counsel were first brought on, plaintiff wouldn’t have had this kind of spoliation issue.

It also is problematic for her. Right. Why would you unfriend these individuals? We’ll have to see how that plays out on a future sanctions motion in this particular case, because that’s going to be key.  If unfriending people on your Facebook page leads spoliation of evidence in litigation, that’s going to be a really key point for lawyers across the country to be able to advise individuals on. A key issue that we’ll have to revisit if a sanctions motion pops up in this case or  further sanctions motion I should say.

The last major issue really came about regarding manner of production. We’ve talked a couple of times on #CaseoftheWeek recently about manner of production. Manner of production is, of course, the way in which you organize and produce the documents. There are two components to manner of production. One, how your documents are organized and produced under Rule 34’s requirement that they produced in the ordinary course as they exist in the ordinary course of business or by request. Then, second, how you physically transfer those documents to the other side.

Here we’re talking about the former Rule 34 is requirement that documents be produced as they are maintained in the ordinary course of business or by request. The defendant went back to the plaintiff after following the production and asked the plaintiff to identify or correlate the bates stamp pages produced with the corresponding production request as required by Rule 34. The plaintiff argued that that request was unduly burdensome. The Court said, “no, it’s really not.”

First of all, you’ve only got 255 to 267 pages of documents that were produced. Those can clearly be gone through and correlated with requests. Second, it stated and this is really what’s key here is because the courts are leaning more towards this manner of production being that you have to produce by request.

Here’s what the Court says. The Court says that Rule 34 was designed to, “facilitate discovery of relevant information by preventing attempts to hide a needle in a haystack by mingling responsive documents with large numbers of nonresponsive documents.” The Court also said that here it was plaintiff’s burden and not defendants to arrange and organize the documents into a reasonably usable format.

Personally, I think that’s not great language on behalf of the Court, because reasonably usable format is form of production, very different than manner of production. That’s where we start to see conflagration of those terms and why we need to be able to sort those out within the courts.

Rule 34, of course, needs to be updated. We’ve talked about that multiple times. But in this particular instance, the Court granted the defendant’s request that the plaintiff provide correlation between the documents produced and the individual requests for production.

Regarding some other issues raised in the case, the Court also denied any request for an adverse inference at this point in time regarding the plaintiffs alleged failure to produce documents regarding a failed pre-employment drug test with Cleveland Clinic and her failure to produce emails about her employment search. The Court found that there was no evidence of intent, which is required by Rule 37, and that negligence is not enough for an adverse inference.

The Court also set a deadline for a completion of the discovery and allowed the request for fees by defense counsel, but it only granted $1,000 worth of fees. This was a very expensive motion to recover $1,000 of fees and a very expensive motion for the plaintiff to be able to deal with. It feels like maybe there was not the preparation and consideration of ESI in this case that there needed to be for the plaintiff to be successful.

What are our takeaways from this case?

First, with regard to the privilege issue, those are issues that need to be identified with your client up front on. You need to have a strategy for handling them throughout the litigation as well as at the deposition. It’s really unclear to me how the plaintiff is going to be able to provide additional testimony that’s going to add privilege to that timeline. But it’s not clear also why the timeline is so problematic that the plaintiff doesn’t want to produce it. One would think that a timeline of events would actually be in the plaintiff’s favor here instead of in the defendant’s favor.

With regard to social media, we have talked about this multiple times on #CaseoftheWeek, but we’re seeing it more and more in cases. When you have an individual plaintiff, social media is almost always going to be evidence that needs to be preserved and collected, and it needs to be done quickly. It is not expensive. There are multiple service providers out there who can do a collection for you of a Facebook account with the username and password very easily and inexpensively, a few hundred dollars, and that needs to be handled as counsel. You need to know that that’s out there. You need to identify a provider to be able to do that for you, and you need to have it done. You need to advise the client that that’s going to be an expense.

That takes away the client’s ability to modify that profile and cause any kind of spoliation. If the evidence is already created on the profile—meaning that nothing from a go forward basis is going to be created—then preservation and collection of that profile at the time of litigation is filed should be sufficient. You need to do that analysis as counsel. That’s not something I can advise on outside the bounds of a specific set of facts. If the information is already created on a social media profile when you get the case and nothing from a go forward  perspective will be created that will be relevant, go ahead and collect and preserve those social media profiles in their entirety so that your client doesn’t have any ability to ignore your advice or if you don’t give them the advice that they can’t make any changes to their social media platforms.

You’ve got to take those active steps. Those are on counsel at this point, and we didn’t see it in this particular decision. But we’ve seen other decisions where counsel are signing the request for production, saying that everything is produced and it’s not, and that’s ultimately going to come back to bite them on a further sanctions motion here with the Court.

It’s really a timing issue. We say early preparation. Social media is one of those things that you need to do early preparation with your client.

Regarding the text messages and audio recordings take away here. Early planning. Either counsel should have taken the phone or had an image made of the phone. Either way, the client needed to be advised to maintain all of that data. There’s no real facts here on the timing of when she lost the phone relative to when she hired counsel. It could be that the phone had already been turned back into Best Buy before she even hired the lawyers, and there was no ability for them to control the loss of that data. But something needed to be provided to the other side regarding that.

I mean, this information coming up and meet and confirms or at a deposition is not the way to handle it. This information should be provided early and upfront about what information is available. To provide discovery responses that say that information will be produced and then have to say that the information will not be produced is bad. It’s a poor reflection of your planning and discovery strategy. You need to know those things going in.

We’ve talked about this multiple times on #CaseoftheWeek that you can’t just respond to discovery saying that you’ll produce information. You’ve got to really know from your client what exists and what the issues are before you respond to those written discovery requests. Otherwise, they’re going to come back to bite you like they did in this particular case.

Manner of production. We kind of already talked about this from a takeaway perspective, but Rule 34 is requirement to produce documents as they are maintained in the ordinary course of business really has little to no meaning for ESI. It needs to be updated. I really call upon the Rules Committee to do something about this particular provision. We need manner of production and form of production to be two separate and distinct ideas that the Rules address. We’re seeing more and more courts that are requiring documents to be produced by requests. Consider making that part of your ESI protocol if you can negotiate it. Otherwise, you’ve got case law to be able to rely on in multiple districts across the country with regard to manner of production and Rule 34’s requirement.

That’s our #CaseoftheWeek for this week. Thanks so much for joining me. We’ll be back again next week with another decision from our eDiscovery Assistant database.

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Thanks so much. Stay safe and healthy out there and we’ll see you next week.

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