For Delayed Production of Social Media and Other ESI, Court Declines to Shift Expert Costs, Awards Attorneys’ Fees; No Sanctions for Lost Text Messages

Federico v. Lincoln Military Housing, LLC, No. 2:12-cv-80, 2014 WL 7447937 (E.D. Va. Dec. 31, 2014)

In this class action case involving consolidated claims for personal injury and property damage, Plaintiffs’ production of social media posts and other electronically stored information was significantly delayed and allegedly incomplete.  The court declined to dismiss Plaintiffs’ case, however, where “a nearly complete record” was eventually produced, where the information was of “limited relevance” and where there was no showing of Plaintiffs’ bad faith.  Instead, the court declined to allocate the $29,000 Plaintiffs spent for expert assistance and indicated it would award a portion of Defendants’ attorneys’ fees.  For Plaintiffs’ failure to produce text messages, the court invoked Fed. R. Civ. P. 37(e) and declined to impose any sanctions.

Plaintiffs alleged personal injury and property damage resulting from mold in their military housing.  It was widely understood that Plaintiffs were heavy users of email and social media.  Despite that, their initial productions of social media content and other ESI were sparse.  Following a supplemental production in response to Defendants’ motion to compel (and prior admonitions from the court), Plaintiffs “seemed to concede the point” that their production was once again incomplete and indicated their desire to employ an outside expert for assistance and for the defendants to bear the costs.  In response, the court indicated its belief that Plaintiffs could locate the at-issue ESI themselves.  Following Plaintiffs’ subsequent failure to meet the discovery deadline, Defendants sought to have the case dismissed.  The court deferred any ruling on sanctions, however, until after yet another promised production from the plaintiffs, this time assisted by their expert.  Ultimately, the court declined to dismiss the case.  Instead, the court noted that Plaintiffs “did eventually produce a nearly complete record of email and social media posts,” and reasoned that Defendants failed to establish that any Plaintiff acted in bad faith and that “the limited relevance of the voluminous material produced,” suggested that any gaps in production were “not likely intentional” and did not prejudice the defense.  The court’s analysis also included consideration of the cumulative nature of the late-produced ESI and the costs of doing so, in light of the proportionality requirements of Rule 26(b)(2)(C).  Nonetheless, recognizing that “nearly all of the electronic production occurred after the motion to compel,” and that the “parties’ depositions demonstrate that they were either initially poorly instructed or deliberately dilatory in their obligations to search for and produce responsive media,” the court concluded that the costs of the production, including the expert’s assistance, would remain with the plaintiffs and that a portion of Defendants’ attorneys fees would be awarded.

Defendants also contended that sanctions were warranted for Plaintiffs’ failure to produce text messages.  Plaintiffs, in turn, argued that their messages would not have been relevant and that they were irretrievably lost prior to Plaintiffs’ awareness that they would be sought in discovery.  The court agreed, and invoked Fed. R. Civ. P. 37(e) in declining to impose sanctions.  Broadly summarized, the court recognized the automatic alteration and/or deletion of text messages by service providers within a relatively short timeframe (i.e., the “routine, good -faith operation of an electronic information system”) and reasoned that the text messages would have been automatically lost before Plaintiffs became aware of the need to preserve them.  Indeed, the court noted the lack of evidence indicating that “any Plaintiff even sent a relevant, non-privileged text message, much less that all Plaintiffs should have been on notice of an obligation to preserve their texts at a time when their actions would have preserved anything that may have been relevant.” The court went on to reason that,“[t]o hold otherwise would require these individual Plaintiffs to understand, prior to receiving any discovery requests, and in some cases prior to ever conferring with counsel, that their voluminous daily text message content could relate to a claim or defense in future litigation regarding their landlord’s response to complaints about mold.”  In the course of its analysis, the court also recognized that “the fact that Plaintiffs are individuals whose devices are solely for personal use informs what constitutes a ‘routine, good-faith operation.’”

The court also addressed Plaintiffs’ allegedly insufficient production of email, but declined to impose sanctions.

A full copy of the court’s order is available here.

Copyright © 2018, K&L Gates LLP. All Rights Reserved.