Duty to Preserve – Electronic Discovery Law

First Pittsburgh “Under the Wire” CLE Seminar Features Presentation on E-Discovery “Hot Topics”

Nov 18 2022

The Pittsburgh office of K&L Gates recently hosted its first “Under the Wire” CLE seminar on November 15th, 2022. The CLE seminar was the first of a new series of in-person CLE events hosted at the K&L Gates Pittsburgh office.

At the inaugural seminar, Daniel Miller (a partner in our e-Discovery Analysis & Technology (“e-DAT”) practice group) and Laura Veith (an associate focusing on commercial litigation) presented on a number of e-discovery “hot topics.” The presentation emphasized how record preservation and collection efforts must adapt in light of clients’ increasing use of new technologies, including mobile devices and applications present on those devices, ephemeral messaging, and enterprise collaboration platforms, such as Microsoft Teams and Slack.

iMessages Are No Longer Immutable: The Ability to Edit and Unsend iMessages Provided by Apple iOS 16 Spurs New E-Discovery Questions

Sep 23 2022

On September 16th, Apple released iOS 16, which now allows users to edit or unsend iMessages. A sender can edit an iMessage up to five times within fifteen minutes after the message is sent. A sender can also unsend an iMessage within two minutes after the message is sent. Recipients of such messages receive an alert that the iMessage was unsent or edited, but do not see the specific changes.

FTC v. Noland (D. Ariz. Aug. 30, 2021)

Aug 30 2021

Key Insight: The day after learning about the FTC’s investigation, defendant Noland instructed his team to use encrypted communications platforms, Signal and ProtonMail, turn on the “auto-delete” function, and to stop using their previous work-related messaging platforms. During depositions, Noland and others failed to disclose the use of encrypted communications platforms and deleted the encrypted messaging apps from the phones so that no communications could be retrieved. The court granted the FTC’s request for an adverse inference based on defendants’ intentional spoliation of evidence under FRCP 37(e)(2), finding the most decisive factor in its analysis was the timing of installation of the apps – just one day after Noland learned the FTC was investigating him. There was a coordinated effort among Noland and his leadership team to deprive the FTC of the use of the encrypted messages in the litigation – by installing the app, using the “auto-delete” function, failing to disclose the use of the app, and deleting the app the day before the phones were to be examined – resulting in an “outrageous maneuver that raises a strong inference of bad faith.”

Nature of Case: FTC, Pyramid schemes

Electronic Data Involved: Encrypted messaging platforms

Case Summary

Manning v. Safelite Fulfillment, Inc. (D.N.J. 2021)

Aug 08 2021

Key Insight: Defendants filed a motion for spoliation sanctions under FRCP 37(e) based on plaintiff’s deletion of certain Facebook messages and emails. Plaintiff claimed he deleted the messages to free up memory on his mobile phone. The court adopted the magistrate judge’s report and recommendations, finding plaintiff’s failure to preserve certain ESI caused prejudice to defendants warranting relief, but did not conclude that plaintiff did so with an intent to deprive defendants the use of the information in litigation. Plaintiff had an obligation to preserve the ESI; he deleted certain messages after he filed his lawsuit; and took no affirmative measures to preserve the ESI despite a duty to do so. The court allowed the introduction of a jury question on the destruction of some of the ESI evidence but reserved ruling on harsher sanctions.

Nature of Case: Employment discrimination

Electronic Data Involved: Facebook, Email

Case Summary

Doe v. Purdue University (N.D. Ind. July 2, 2021)

Jul 07 2021

Key Insight: Defendants filed a motion for spoliation of evidence and sanctions after plaintiff failed to provide Snapchat data consistent with the parties’ joint stipulation and prior court orders, and deleted certain Snapchat files that were subject to the stipulation and orders. Plaintiff admitted he had deleted some files from his “memories” folder in Snapchat, but claimed they were irrelevant, and he did so to free up memory on his phone. The court found plaintiff was under a duty to preserve the Snapchat data and he breached that duty when he destroyed the data. Without the deleted files and believing plaintiff’s claim that he deleted the files to free up space and memory on his phone, the court could not find that plaintiff did so with the purpose of hiding adverse information and declined to dismiss plaintiff’s complaint. The court imposed monetary sanctions and ordered plaintiff to pay defendants’ attorney’s fees and costs associated with litigating the motion, and allowed defendants to introduce a limited jury instruction regarding the destruction of ESI.

Nature of Case: Civil Rights

Electronic Data Involved: Snapchat data

Case Summary

Charlestown Capital Advisors, LLC v. Acero Junction, Inc. (S.D.N.Y. Sept. 30, 2020)

Sep 30 2020

Key Insight: Sanctions against Defendants were warranted. Defendants had a duty to preserve relevant ESI at the time of their deletion which occurred a year into the litigation. Defendants failed to take reasonable steps to preserve relevant ESI. Defendants failed to suspend their routine document retention/destruction policy, Defendants’ counsel failed to oversee or play a role in preserving or attempting to reconstruct relevant ESI until 5 months after their deletion, and Defendants’ restoration attempts were inadequate.

Nature of Case: Breach of Contract

Electronic Data Involved: Email

Case Summary

Nguyen v. Costco Wholesale Corporation (S.D. Fla 2020)

Jan 27 2020

Key Insight: Defendant had no duty to preserve the allegedly spoliated video for the almost two years before the filing of the lawsuit because there was no indication Plaintiffs intended to pursue litigation. Plaintiffs failed to present evidence indicating the allegedly spoliated video was relevant to this litigation which would trigger a duty to take reasonable steps to preserve it. No sanctions are warranted.

Nature of Case: Slip and Fall Liability, Personal Injury

Electronic Data Involved: Surveillance Video

Case Summary

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