Tag: Text Message

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FTC v. Noland (D. Ariz. Aug. 30, 2021)
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Doe v. Purdue University (N.D. Ind. July 2, 2021)
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Krishnan v. Cambia Health Solutions, Inc. (W.D. Wash. 2021)
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Allen v. PPE Casino Resorts Maryland, LLC (D. Md. 2021)
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FTC v. Vyera Pharms., LLC (S.D.N.Y. June 1, 2021)
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Edwards v. Junior State of Am. Found. (E.D. Tex. 2021)
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Benebone LLC v. Pet Qwerks, Inc. (C.D. Cal. Feb. 18, 2021)
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DR Distributors v. 21 Century Smoking, Inc. (N.D. Ill. 2021)
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Balderas v. Ill. Cent. R.R. Co. (N.D. Ill. Jan. 8, 2021)
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Charter Communications Operating, LLC v. Optymze, LLC (Del. Ch. 2021)

FTC v. Noland (D. Ariz. 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

Krishnan v. Cambia Health Solutions, Inc. (W.D. Wash. 2021)

Key Insight: Defendant cannot be compelled to produce text messages from employees’ personal cell phones because they did not have possession, custody, or control of the devices. An employer has possession, custody, or control of a cell phone when the employer issued the cell phone, the cell phone is used for business purposes, and the employer has a legal right to obtain communications from the cell phone.

An email does not become privileged simply by including counsel as a recipient to an email. If the email was not sent with the purpose of obtaining legal advice, it is not privileged.

An independent forensic examination of electronic devices for electronic communications is appropriate when a party intentionally delays or withholds relevant and discoverable communications.

Nature of Case: Wrongful Termination, Employment Law

Electronic Data Involved: Text Messages, Email

Case Summary

Allen v. PPE Casino Resorts Maryland, LLC (D. Md. 2021)

Key Insight: Plaintiffs sought a protective order to prevent defendant from obtaining ESI from five different social media platforms they were active on. The court found that while a plaintiff’s social media postings could be relevant to a claim for “garden variety” emotional distress damages, some caution was necessary, such that a “deeper dive” into social media postings may be justified only in cases involving “severe and specific emotional distress” allegations. Since plaintiff alleged “garden variety” emotional distress stemming from defendant’s allegedly wrongful conduct, the discovery must be narrowed as follows: “specific references to serious, non-transient emotional distress in connection with the incidents described in their Complaint,” i.e., diagnosable conditions, visits to professionals for treatment of distress, treatment regimens and conversations regarding same; time frame limited from date contained in complaint of onset of difficulties to the date of filing of complaint; production limited to information found in a typical download of data from plaintiffs’ own accounts and plaintiffs “need not engage in extraordinary efforts in obtaining responsive information.”

Nature of Case: Employment discrimination

Electronic Data Involved: Social media posts

Case Summary

FTC v. Vyera Pharms., LLC (S.D.N.Y. June 1, 2021)

Key Insight: Vyera’s company policy was to issue employees iPhones that were backed up through iCloud but one executive, Mithani, whose conduct was central to the government’s antitrust claims, had requested and received a Blackberry as his company phone, which had no systemic back up of text communications. Despite being under an obligation to preserve evidence, the executive confirmed deleting texts on his work and personal mobile phones before and after receiving a hold notice from Vyera, and wiped his work phone upon leaving the company. A forensic expert confirmed no data could be retrieved or restored from the Blackberry. The court concluded Vyera’s conduct constituted spoliation and warranted sanctions as plaintiffs were prejudiced by Vyera’s conduct and the former executive acted intentionally to deprive plaintiffs of discoverable information. The court declined to adopt an adverse inference sanction and instead adopted Vyera’s proposed sanction that it be precluded from calling the former employee to testify in its defense or introducing into evidence documents that he authored.

Nature of Case: Antitrust

Electronic Data Involved: Text messages

Case Summary

Benebone LLC v. Pet Qwerks, Inc. (C.D. Cal. Feb. 18, 2021)

Key Insight: Court granted defendants’ motion to compel plaintiff to produce Slack messages used as part of its internal business communications. Despite the potentially 30,000 Slack messages to review, the court found compelling the testimony from defendants’ forensic expert who stated there are a number of tools and software vendors that have streamlined review and production of Slack messages. Further, searches could be limited to certain Slack channels, users and custodians to very streamline the volume of messages for review. Thus, “requiring review and production of Slack messages by Benebone is generally comparable to requiring search and production of emails and is not unduly burdensome or disproportional to the needs of this case – if the requests and searches are appropriately limited and focused.”

Nature of Case: Intellectual property

Electronic Data Involved: Slack messages

Case Summary

DR Distributors v. 21 Century Smoking, Inc. (N.D. Ill. 2021)

Key Insight: The court granted plaintiff’s motion for sanctions but declined to find “intent to deprive” under Rule 37(e), instead applying Rule 26(g) for failing “to make a reasonable investigation to ensure that [defendant] provided all available responsive information and documents.” The court issued sanctions and curative measures under Rules 37(a), 37(b), 37(c) and 37(e)(1). This 256-page sanctions opinion arises from ESI issues beginning at the outset of protracted litigation involving infringement claims over similar trademarks for e-cigarettes. Defendants and their counsel were sanctioned for multiple failures to preserve and collect ESI, including: failure to preserve messages from web-based email and chat applications; failure to turn off auto-delete functions on messages; defense counsel’s failure to follow-up with written hold instructions to preserve relevant ESI and take steps to collect messages from web-based applications; defense counsel’s failure to perform custodial interviews to identify likely sources of ESI; defense counsel’s failure to understand that relevant emails may be found in both corporate and personal email and mistakenly believed that data within the web applications would be saved to corporate hard drives; failure to disclose the existence of relevant ESI; defense counsel offered false testimony about the existence of ESI; and defense counsel’s failure to supervise defendants in self-collected ESI.

Nature of Case: Trademark infringement (Lanham Act)

Electronic Data Involved: Email, Instant messages

Case Summary

Balderas v. Ill. Cent. R.R. Co. (N.D. Ill. Jan. 8, 2021)

Key Insight:

Further discovery must be based on more than mere speculation or suspicion that additional documents exist. The moving party must make a case showing “it can be reasonably deduced that other documents exist[.]”

The Court was unable to reach a ruling regarding Plaintiff’s requested search terms due to insufficient information. While Defendants did reject the terms and did not provide alternatives, plaintiff did not say what the requested terms were or why they were rejected.

With regards to specific discovery requests, Defendants were ordered to search for and produce responsive documents. The Court noted “boilerplate” objections without further explanation are equivalent to making no objection at all and individual authorization to access electronic communications is not required when the individuals are parties to the case. Additionally, emails and texts messages party’s employee are a compelling form of evidence that can be particularly significant in litigation.

Nature of Case: Civil Rights, Employment Discrimination

Electronic Data Involved: Personnel Records, Business Records, Electronic Communications, Email, Texts, Voicemails, Instant Messages, Electronic Documents Generally

Case Summary

Charter Communications Operating, LLC v. Optymze, LLC (Del. Ch. 2021)

Key Insight: Defendant committed serious misconduct sufficient to justify dismissal of its counterclaims under Rule 41(b). Defendant refused the reasonable request for native files exchanged via Microsoft Teams. Defendant produced individual emails containing each message. In this format, the messages could not be reassembled into complete conversations. Defendant was compelled to produce the native files which revealed extensive spoliation of evidence. Defendant edited numerous chat messages in an effort to hide instructions to employees to take actions that violated court orders. Because all of the unaddressed misconduct related to Defendant’s counterclaims, dismissal of those counterclaims with prejudice and award of fees and expenses is an adequate remedy.

Nature of Case: Breach of Contract

Electronic Data Involved: Instant message

Case Summary

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