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#CaseoftheWeek Episode 5: Social Media Preservation and Production

Preserving social media was the topic of discussion for episode 5 of #CaseoftheWeek. Kelly Twigger discussed dismissal sanctions and the failure to preserve social media in π†πšπ«ππ§πžπ« 𝐯. π–πžπ₯π₯𝐬 π…πšπ«π π¨ 𝐁𝐚𝐧𝐀, 𝐍.𝐀., 𝟐𝟎𝟐𝟎 𝐖𝐋 πŸ•πŸπŸŽπŸ“πŸπŸ‘πŸ” (𝐄.𝐃. π–πšπ¬π‘. 𝟐𝟎𝟐𝟎) presided over by United States Magistrate Judge Thomas O. Rice.

Hi, greetings, ediscovery enthusiasts and welcome to our ACEDS #CaseoftheWeek for December 15, 2020. I’m Kelly Twigger the CEO and founder of eDiscovery Assistant and the principal at ESI Attorneys. I’m excited to join you this week as part of our partnership with ACEDS in bringing together case law and some education in order to be able to help educate lawyers and legal professionals on ediscovery case law and discuss some of the practical implications of decisions.

Many of you know that eDiscovery Assistant maintains a curated database of ediscovery decisions that are tagged by ediscovery issues, including today’s issues based on failure to preserve and social media, as well as sanctions for dismissal.

You will be able to find a link to the case that we’re going to discuss today in both the about section and the comments on the LinkedIn Live event. If you’re watching us on another platform, you want to pop over to the LinkedIn Live event and be able to view those items there. If you’re viewing this video later on our blog, you should be able to see links to those items in the blog post itself.

Before we get started I want to remind you all to sign up to receive information about the University of Florida E-Discovery Conference that will be happening virtually in March this year. It’s March 18th. It’ll be a one day event. It is free. It will this year focus on practical takeaways, trying to deal with our existing working environment, as well as what we’ve been seeing in ediscovery over the last year and some of the evolution of technology. So it’s going to be a great event. We’ve got a lot of terrific people in the industry working on the planning for that event and we would love to have you join us. Sign up, and you’ll get information as soon as registration is open. That link is also in the about section and in the comments on the LinkedIn Live event page.

If you need that link and you’re outside this video, you can always drop me a line on LinkedIn or on any other social media platform. We’ll get back to you.

Let’s dive into our case for this week. Our case this week is a decision in the case titled Gardner vs. Wells Fargo.

This is a pretty recent decision from December 7th from the United States District Judge Thomas Rice, and the issue that we’re looking at this week is whether the failure to preserve and produce social media was grounds for dismissal under Rule 37(e).

The facts of this case are really as follows, and before we jump into that, I just want to make a general plea. If you’re not familiar with the review, collection, doing analysis in social media, I want you to listen carefully to this case and and see what it is that you need to be familiar with for purposes of cases that you are engaged in.

We’re seeing social media all over the place these days in both commercial litigation, but also in employment litigation, sort of across the board. If you’re working in the employment litigation area, you know that social media is a prime issue. In this case is instructive for a number of reasons.

Let’s dive in.

Plaintiff was an employee of Wells Fargo and was terminated from her position and alleged workplace discrimination following her removal from the company. In the litigation, as part of both her discovery responses and at her deposition, the plaintiff stated that she did not have a Facebook account and did not produce any messages from Facebook Messenger, which is the instant messaging application that’s associated with Facebook.

If you use Facebook on a mobile device, your Messenger application is a completely separate app that you have to download and manage. If you’re using it on the desktop version, Messenger just shows up as your messages within the Facebook application, but they are two distinct places that have to be collected from for purposes of social media collection.

In terms of looking at those facts, the court specifically stated that the plaintiff had affirmatively denied the existence of personal social media and networking accounts. That’s really important as we get into the analysis. In discovery, the plaintiff named a third party friend of hers as someone that she spoke to and the defendant issued a third party subpoena to that witness. The witness subsequently produced messages between her and the plaintiff from Facebook Messenger that included a profile picture of the plaintiff, but with a different name.

As the case specifically states, the name of the plaintiff that’s listed on the complaint is Lynn Gardner, the name that was listed on the Facebook account was Sofia Lynette Gardner.

I tell you that because it’s important to note that there are pretty distinct similarities between the name of the plaintiff as listed on the complaint and the name that’s listed on the Facebook account such that an investigation of social media probably would have revealed this account. Particularly as there’s a profile picture that that identifies plaintiff. Of those messages that the third party witness produced, some of them were made on the same day that the plaintiff gave a deposition in which she said she did not have a Facebook account.

Again, as we’ve talked about in multiple decisions, the timeline here is really key. When you’re articulating facts to the court, the timeline is what the court needs to understand. The responses that we talked about on the discovery requests were provided and supplemented multiple times up through July of 2020. On August 14th, roughly three to four weeks after discovery responses were received, the plaintiff was deposed, which is reasonable. On August 21st, the defendant served the third party subpoena. On September 8, the third party responded with documents that showed that the plaintiff had falsely stated that she did not have social media accounts at her August 14 deposition. On September 22, the plaintiff’s husband was deposed and the defense counsel raised all of the social media account evidence that had been provided by the third party and asked the husband about it. The facts, as they are stated in the Opinion, show that the husband was a little bit clueless as to what his wife did on social media. He mentioned that perhaps she had mentioned previously having a dummy account on Facebook. If you’re not familiar with a dummy account, it basically means that you set up a Facebook account, not using your actual information. Whether you use a false name or an Avatar photo that doesn’t identify you, something other than than listing yourself as your actual identity on Facebook constitutes a dummy account.

On September 22nd, then the husband revealed what he knew about the wife’s social media accounts, that was going to be contrary to what she had testified to. Sometime between September 22nd when the husband gave his deposition and October 21st, or rather October 12th, within that time period, the plaintiffs, the lead counsel for the plaintiffs, died unexpectedly. There was a big turnover in a case. Any time you’re going to have a change in counsel, that’s going to be a significant issue. The plaintiff’s counsel then moved for a continuance.

When the social media information was identified with the husband, the plaintiff’s counsel immediately said that they would produce all social media by the end of the week. They then moved for continuance, ostensibly based on the fact that they had had this change in counsel. That can be extremely disruptive, depending on how many other lawyers were in the loop on the particular case.

The next step that happens is that the defendant opposes both the continuance. The plaintiff asked them to agreed with; the defendant opposed it.  The plaintiff then moved for a continuance at the same time or shortly thereafter producing the social media accounts.

But the defendant also opposed the continuance. There’s not any real great information in the case as to what would cause the defendant to oppose the continuance, particularly in light of the death of a lawyer. That would seem to be kind of a no brainer in my book, but there are always extenuating circumstances that we aren’t aware of in these decisions.

The plaintiffs then produced the data on October 20th, and then the very next day on October 21st, the defendant filed a motion seeking dismissal as a sanction for failure to produce relevant evidence, but at the same time stating that because it had only received evidence the day before, it had not had time to meaningfully review the contents of the CD they had been provided.

That’s really important, I think, from a timing of the motion perspective and also from the consideration that the court gives it. The court did grant the motion to continue and discovery was set to close in April of 2021, roughly five to six months after this motion is being made for dismissal. That’s going to be a huge factor as we get into the analysis.  The basis of the motion, as we talked about, was really less a motion for sanctions and more a motion to dismiss in terms of the disposition of the case.

But because it was in context of discovery and passed the time to file a motion to dismiss, it was considered a motion for sanctions by the court. Defendant sought the dismissal following what they claimed is the alleged perjury in plaintiff’s discovery responses and deposition testimony regarding the existence of social media accounts.

The court really discusses–and I think this is the important part of the decision that I want you to focus on–the court discusses that there are two sources of authority to sanction a party who fails to comply with discovery rules. Rule 37 under the Federal Rules of Civil Procedure, which lays out various sections according to conduct that may be sanctionable or its inherent powers. For purposes of this case, because there had been no order issued, no discovery order issued that the plaintiffs were in violation of Rule 37 did not apply and the analysis turned to the court’s inherent power to sanction based on the plaintiff’s conduct. This inherent authority, I think, is really important because a lot of times we don’t have an order that a party has already violated in terms of getting sanctions. A lot of times that when you come to the court on a spoliation issue, it’s the first time you will have seen a failure to preserve. Strategically you want to think about whether you need to move to compel to have information produced and get an order from the court that then subsequently you can use on a sanctions motion if that information is not subsequently produced. That’s a strategic point that you want to think about in these kinds of situations.

On the inherent authority issue, what the court looked at is that these district courts possess inherent powers to dismiss an action as a sanction, where a party has willfully deceived the court and engaged in conduct that is utterly inconsistent with orderly administration of justice.

But here’s the key point.

Due process limits dismissal sanctions to extreme circumstances in which the deception relates to the matters in controversy. That relationship to the actual claims within the case is what’s going to be clear here and important on the analysis.

Sanctions are prohibited for merely punishment of an infraction that did not threaten to interfere with the rightful decision of the case. That’s fairly common sense, but it’s important to understand when you’re evaluating inherent authority of the court.

Both of the parties here presented two separate sets of factors for the court to look at. They were fairly different in what they considered. So it seemed odd to me that both parties would have such different positions in terms of the case law. Nevertheless, the court looked at four different factors in evaluating whether or not there was a substantial basis for dismissal here. Extraordinary circumstances, willfulness, bad faith or fault was number one. Relationship to the matter and controversy is number 2.  Prejudice to the defendant is number three and the availability of lesser sanctions was number four.

What did they say on each one of those? In terms of the extraordinary circumstances, willfulness, bad faith or fault. The facts of the case are pretty clear that the plaintiff here was not truthful about the existence of her social media accounts. Whether it was because she didn’t know somebody would find a dummy account, or they didn’t feel like any of the accounts had any relevance or there was information that was responsive to the litigation. Those are not the arguments that are made here, but it’s pretty clear that based on the information that was produced by the third party, that those social media accounts existed. You definitely have a situation where the plaintiff has not been truthful in their discovery responses and with the court. That’s also a problem for counsel here because they signed those discovery responses, knowing what the plaintiff’s statements were. There’s a question in my mind as to whether or not there should have been some independent investigation by plaintiff’s counsel before signing those discovery responses.

That is not something that’s raised in this case. It’s something that I put out to you to know from a go forward perspective, as we’ve talked about the obligations under Rule 26(g) before and doing a proper investigation into what information exists is your obligation under Rule 26(g) when signing those discovery responses.

In this particular case, the wife’s behavior was willful and in bad faith, but according to the court, did not rise to the level of extraordinary circumstances to warrant dismissal. And that is for a couple of reasons. Discovery was still going to be open for five or six months. As I mentioned, this was only the first round of written discovery, and at this point in time, there had been no other allegations of withholding evidence and no pattern to suggest that or no other evidence to suggest that this was a pattern by the plaintiff.

The defendant wanted to allege fairly conclusory that this indicated a pattern, and they had no ability to understand whether they were truly getting all of the evidence from the plaintiff based on this lack of production of social media data. The court found that there really wasn’t a basis for that other than just to sort of generally draw that conclusion. In terms of the extraordinary circumstances, they did not exist.

Relationship to the matter and controversy is the next factor and really the key one here. As the court notes, the messages that were produced by the third party bore absolutely no relationship to the issues of the plaintiff’s employment. In the one of the central quotes for this case that I think is really important is to say, “the central issues of this case relate to alleged age and gender discrimination experienced by Miss Gardner during her employment with the defendant. The communications appeared to be mundane and personal conversations about politics, memes and the Gardners’ personal lives, all of which are unrelated to the central issues of this case. They do not mention defendant Miss Gardner’s employment experience or any of her claims in this matter.”

That’s really what’s key here. The court looked at all of the messages that had been produced or at least what was provided on the motion papers. There’s no discussion of it in camera review and that none of the messenger messages, texts or other LinkedIn posts were at all related to anything with regard to the litigation. That failure to establish a clear relationship between the plaintiff’s concealment of the social media accounts and the matters in controversy meant that there was no support for dismissal as a sanction. Failure to meet the relationship to the matter and controversy was pretty detrimental to the defendant’s case here.

The next element was prejudice, whether or not the defendants were prejudiced by the concealment of the social media evidence. Here, the defendants only alleged prejudice was a delay in the proceedings. Again, that notion that they couldn’t be certain that they were getting all of the evidence. Much like with the relationship argument, the court found that those were really unsupported and that the delay was not sufficient at all to warrant dismissal. That’s going to be pretty consistent with case law that we’ve seen, especially in the situation where discovery still remained open for five or six months.

We fail the prejudice prong and the next analysis becomes the availability of lesser sanctions. What’s interesting here is that the the defendant moved for dismissal and did not provide at all for the availability of any lesser sanctions. Didn’t give the court any reason to offer any lesser sanctions or even seek costs on the motion.

The plaintiff had offered further deposition testimony on the social media issues.

The court undertook an analysis of this lesser sanctions. This is important because the 9th Circuit has a requirement that “in evaluating lower court decisions as to whether the court explicitly discussed alternative sanctions, whether it tried them, and whether it warned the recalcitrant party about the possibility of dismissal,” and that’s a quote directly from the case. The reason that’s important is that it felt to me like the court knew that it needed to say they needed to do something here, but didn’t have a whole lot of basis for sanctions because there was kind of a no harm, no foul situation in the failure to produce the social media accounts because of the lack of relationship to the controversy.

In going through that Ninth Circuit analysis, the court cites other lesser sanctions, including warning, imposition of costs or attorney fees, extension of the discovery period, preclusion of claims or defenses, or an adverse inference instruction.

In looking at all of those lesser options, the court said that based on the lack of relationship of the data to the case and the lack of prejudice, they just issued a warning to the plaintiffs and said “that plaintiffs and plaintiffs counsel are now on notice that should plaintiff’s untruthful behavior continue or other deceptive and abusive litigation practices come to light, the court may impose sanctions, including dismissal.” At this point, that’s what you have is a warning from the court in this case.

A real dismissal of the of the motion seeking dismissal and the court denies the motion in its entirety and really just issues a warning to the plaintiffs. So that’s the sum and substance here.

What are our takeaways from here? What do we need to learn from this case?

Well, first and foremost, as I mentioned before, we got going on the case is you need to understand the implications of social media for the types of cases you’re involved in. Even if you are not active on social media–and there’s no reason why you necessarily need to be, if you’re not–you need to understand how the platforms work, what’s public, what’s not public, what you can find, how you’re going to collect data sources. And that’s really important these days since about six weeks prior to the election in November, most of the social media platforms, including Twitter, Instagram, Facebook, all changed their APIs to try and restrict the availability of bots to manipulate the election in the same way that we experienced in 2016. As a result of changing those APIs, many of the tools used to collect social media do not work in the same way that they did prior to that, and the process to collect and use social media is more difficult, at least in the short term. Know that. Be prepared with how you’re going to deal with that information, and it’s incumbent upon you to do your own social media investigation into your client’s social media accounts.

In this particular instance, it doesn’t feel to me like it would have taken much investigation at all for plaintiff’s counsel to determine that the plaintiff here had a dummy account just based on the similarity of the name and the fact that she used a profile picture that was identifiable as her. You can hire people to do a social media investigation that does not cost but a few hundred dollars, and they can do it across platforms. You can do it yourself, but the point is you need to be informed about what your clients are doing on social media, regardless of what they’re telling you. You have those 26(g) obligations and you need to understand that.

The next takeaway here is that the court’s decision here was based on its inherent powers and not an analysis under Rule 37(e). You need to understand that analysis that the court’s going to go through. It’s absolutely going to be very factually based, just as all of these discovery decisions are.

The timeline, as always, is very key. It’s really hard to see how the defendants could make a case for prejudice when they still had six months worth of discovery here. Clearly, there was not a huge amount of discovery to be done because they took a deposition three to four weeks after receiving initial discovery responses, even with a larger still a long, open time period for discovery. It feels hard to make a case for prejudice there, and I think from a timeline perspective, that’s the argument that you want to be able to make to the court if you’re trying to refute prejudice.

Then, of course, the relationship of the data to the claims of the case or what we call relevance. That seems really important here, and it sort of seems like a no brainer in terms of a lot of context of why you bring this motion, given that the data that you received had no bearing on the claims of the case. I thought it was interesting that the court specifically notes that the defendants had no opportunity to do meaningful review of the data before bringing the motion. It was unclear from the case as to whether they felt compelled to bring the motion on that specific date or why before reviewing the information. As always, there are probably facts here that we’re unaware of that impact impacted decisions that were made.

This case also shows, again, that you need to be very factual and very specific in responding to discovery disputes and in raising issues and document, document, document. I know that’s a common theme on our #CaseoftheWeek, but here it’s really important to be able to create that timeline for the court because it dramatically influenced the basis of whether or not there was prejudice, the basis of information that was put forth, and the timeline. It showed that the plaintiff clearly made made false statements at her deposition regarding the existence of social media accounts based on the timing, but also that discovery still had several months left to go.

That is our case of the week for this week. Thank you so much for joining me. Remember to sign up to receive information to register for the UF Conference. Link to the Gardner decision is in the about section and also the comments for this LinkedIn Live event. You’ll see it as a follow up on our blog post, which will appear on the eDiscovery Assistant blog this Thursday. You can sign up to receive blog post notifications at eDiscovery Assistant.com.

We’ll see you next week. And in the meantime, stay safe and healthy and happy holidays to you and your family. Thank you.

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