eDiscovery Case Law Update and Reminders, August 2024

IMPORTANT RULES

FLORIDA RULES OF CIVIL PROCEDURE

• Fla. R. Civ. P. 1.380(e)– Failure to Preserve Electronically Stored Information.
• Fla. R. Civ. P. 1.350(b)
• Fla. R. Civ. 1.280 Discovery – effective January 2025
  • Parties are required to make initial discovery disclosures within 60 days of service of the complaint.
  • Initial discovery requirements include names of individuals likely to have discoverable information, copies of documents that a party may use to support its claims or defenses, and computation of each category of economic damages claimed by a party – aligns with Federal Rule 26
  • Parties are also required to supplement discovery responses.
  • Discovery requests must be “proportional to the needs of the case,” adopting the factors from the Federal Rules of Civil Procedure on the proportionality of discovery.

FEDERAL RULES

• Fed. Rule 37(e): Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
• Fed. R. Civ. P. 34(b)(E) governs the procedure used when producing ESI.

FLORIDA JURY INSTRUCTIONS

• Florida Jury Instruction 301.11(a): Adverse Inference
• Florida Jury Instruction 301.11(b): Burden Shifting Presumption

This instruction applies only when the court has determined that there was a duty to maintain or preserve the missing evidence at issue and the party invoking the presumption has established to the satisfaction of the court that the absence of the missing evidence hinders the other party’s ability to establish its claim or defense.

CASE LAW UPDATES

Duty to Preserve ESI

Skanska USA Civil Southeast, Inc. v. BagelHeads, Inc., 75 F.4th 1290 (11h Cir. 2023).

• Bad faith is not just an affirmative action of destruction but also failure to take reasonable steps to preserve ESI. Skanska executives failed to follow protocol once leaving the company. The protocol was to secure cellphones and back up its data. Discovery requests for text messages were not produced due to failing to back up cellphones, restoring cellphones to factory settings, and / or phones being lost “overboard.” The texts were requested were related to known issues and actions to be taken related to the 2020 Pensacola Bay Bridge collapse.

Seaway Biltmore, Inc. v. Abuchaibe, 348 So.3d 23, 27 (Fla. 3rd DCA Sept. 14, 2022).

• The Third DCA opinion written by Justice J. Hendon indicates a duty to preserve triggers when there is notification of potential litigation.
• “Even in the absence of a legal duty, the spoliation of evidence may result in an adverse inference against the party that discarded or destroyed the evidence.” Id. (citing League of Women Voters of Fla. V. Detzner, 172 So.3d 363, 391 (Fla. 2015).

Sanctions for Failing to Preserve (Intent v. Negligence)

• Adamson v. R.J. Reynolds Tobacco Co., 325 So. 3d 887, 894 (Fla. 4th DCA 2021).
  • “First-party spoliation occurs when a party to the action ‘lost, misplaced, or destroyed’ evidence.” (citation omitted)
  • “When a party has intentionally interfered with the adverse party’s access to critical evidence, ‘a wide range of sanctions is available to the trial court under Florida Rule of Civil Procedure 1.380(b)(2).’” (citation omitted)). However, when essential evidence is unavailable due to a party’s negligence, a rebuttable presumption arises in favor of the other party.
  • “Prior to a court exercising any leveling mechanism due to spoliation of evidence, the court must answer three threshold questions:
    • 1. whether the evidence existed at one time,
    • 2. whether the spoliator had a duty to preserve the evidence, and 2
    • 3. whether the evidence was critical to an opposing party being able to prove its prima facie case or a defense.” (citing Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 781 (Fla. 4th DCA 2006)).”

Irreparable Harm

• Kubisiak v Gualtieri, 822CV02356WFJSPF, 2024 WL 1156552, at *13 (M.D. Fla. March 18, 2024) (citing to Centex Homes v Mr. Stucco, Inc., No. 8:07-CV-365-T-27MSS, 2008 WL 11336645, at *2 (M.D. Fla. Mar. 25, 2008)).
  • Spoliation sanctions under Fla. R. Civ. P. 1.380(e) equally applies to plaintiffs and defendants. However, a party’s spoliation of evidence could impair potential suits against third parties who were not parties to the current suit. Sanctions or rebuttable presumptions would not remedy the underlying harm. These issues are not outliers not the norm.

Duty to Return Company’s Electronic Devices

• Wegman v. United States Specialty Sports Ass’n, Inc., 6:23-CV-1637-RBD-RMN, 2023 WL 8599972, at *2 (M.D. Fla. Dec. 12, 2023).
  • U.S. Middle District Court (Orlando) found that Plaintiff’s retention of the company’s 3 electronic devices prevented the organization from fulfilling its duty to preserve evidence, thereby prejudicing the Defendant. Accordingly, the Court ordered return of the electronic devices and awarded reasonable expenses that Defendant necessarily incurred prosecuting the motion to compel.
  • Court reasoned that Plaintiff’s behavior “frustrates the organization’s collection efforts, stymies its investigation into the events that form the basis of Plaintiffs’ claims, and thwarts the preparation of the organization’s defenses.” Id. at *2.

Sanctions for Failure to Provide Documents

• Costco Wholesale Corporation v Vargas, 2023 WL 7006405, at 2* (Fla.App. 3 Dist., 2023).
  • Costco Wholesale Corporation appeals two trial court orders awarding plaintiff attorney’s fees and costs. The first order was entered after Costco failed to comply with an earlier order to provide better responses to Vargas’ interrogatories. The second order was entered because of the conduct of Costco’s attorney and corporate representative at a deposition. Costco argues the trial court abused its discretion in entering these orders. Court assessed sanctions against the corporate representative 3 and attorney were appropriate. The 3rd DCA affirmed, Noting Main 2 issues warranted the sanctions:
  • (1) the document that the witness intended to consult during the deposition (indeed to read from) was not disclosed when opposing counsel asked for such documents; and
  • (2) Costco’s attorney coached the representative during the opposing counsel’s examination to provide only the answers the lawyer had written down for him.

Privileged

• William Hamilton Arthur Architect, Inc. v. Schneider, 342 So. 3d 757, 763–64 (Fla. 3d DCA 2022).
  • In ordering turnover of Appellant’s electronic device, Trial court failed to consider less intrusive means of obtaining the requested information (failed to “define parameters of time and scope, and … place sufficient access restrictions to prevent compromising … confidentiality and to prevent harm to [the device]” and because the challenged order GRANTED unfettered access to electronic device, that did not protect against disclosure of confidential and privileged information,
  • The Fla. 3rd District Court concluded that the trial court’s orders departed from the essential requirements of law and would cause material injury to Appellant throughout the remainder of the lower court case, effectively leaving no adequate remedy on appeal.”

Remedies for Production Beyond the Rules

• In re Blair, 657 S.W.3d 87, 95 (Tex. App. 2022).
  • Mandamus relief is available when a trial court compels production of electronic data and information beyond the permissible bounds of discovery.
  • The harm a party will suffer from being required to relinquish control of its data for forensic inspection, and the harm that might result from revealing private conversations, trade secrets, and privileged or otherwise confidential communications, cannot be remedied on appeal.”

Proportionality and Remedies for Production Beyond the Rules

• Roque v Swezy, Civil Action No. 3D23-1836, 2024 WL 1895141 (Fla. 3d DCA May 1, 2024).
  • The case involves proportionality, scope of discovery, and Constitutional right of privacy.
  • Ex-business partner and domestic partner sought cellphone text messages in case of breach of contract, breach of fiduciary duty, tortious interference, and alleged claims of abuse, assault, and defamation.
  • Roque’s entire cellphone data was imaged by a forensic expert, as it was a “quick and more efficient” means of obtaining ESI.
  • The Third District disagreed holding there “Swezy failed to establish that there was any actual or threatened alteration, deletion or destruction of data on Roque’s cellphone, and no less intrusive means to obtain the information sought, the trial court departed from the essential requirements of law in granting Swezy’s motion and directing the forensic imaging of the entire contents of Roque’s cellphone and production of electronically stores information and data as set forth in the trial court’s order.”

Stick to ESI Protocols

• Garner v. Amazon.com, Inc., 2:21-CV-00750-RSL, 2023 WL 3568055, at *2 (W.D. Wash. May 19, 2023).
  • Parties agreed to specific search terms for production of ESI. Amazon indicated 2 million documents were deemed potentially responsive to the Request for production. Amazon was going to use Technology Assisted Review (“TAR”) to refine the search with assistance of Plaintff. Plaintiff objected. TAR and human review was utilized.
  • The Amazon Court noted “[b]ut, as discussed above, the Model ESI Agreement in this district clearly contemplates using TAR to filter, not just locate, documents, and the ESI Agreement entered in April 2022 simply directs the parties “to confer to attempt to reach agreement on … appropriate computer- or technology-aided methodologies[ ] before any such effort is undertaken.”
  • The Court finds that the use of search terms is not, standing alone, a bar to using technology to further refine the production.”

Court Can Decide Search Term Protocol When Parties Do Not Agree

• Raine Group LLC v. Reign Capital, LLC, 21CV1898JPCKHP, 2022 WL 538336, at *3 (S.D.N.Y. Feb. 22, 2022).
  • The court discusses search terms and provides insight concerning search term protocol including:
  • That search terms “must be carefully crafted” and notes “[p]oorly crafted terms may return thousands of irrelevant documents and increase, rather than minimize the burden of locating relevant and responsive ESI.
  • They also can miss documents containing a word that has the same meaning or that is misspelled. Broad, general search terms such as the ones the parties are using are typically not sufficiently targeted to find relevant documents. Modifiers are often needed to hone in on truly relevant documents.
  • However, what modifiers are appropriate is often best left to specialists who can interpret “hit” reports and suggest refinements—not to the Court. Nevertheless, because the parties cannot agree, the Court will decide.”

Evidence

• Ramos v. Miami-Dade Cnty., 337 So. 3d 494, 495 (Fla. 3d DCA 2022)
  • This 3rd DCA case highlights the importance of video evidence and other dispositive ESI in Florida and its ability to result in summary judgment.
  • So in dispute was a passenger on a bus who was injured when after the passenger got on the bus, and as the bus proceeded to leave the stop, a car pulled in its lane and the bus stopped to avoid collision.
  • Ramos said she was facing away from the driver and did not know the reason for the stop. Video evidence, however, proved otherwise and was the deciding factor in this case.
  • Also, recall the summary judgment standard in Florida was recently changed based on a case where clear video evidence was discounted by testimony, creating a supposed fact question.
• State v. Jesenya O., No. S-1-SC-38769 (N.M. June 16, 2022)
  • This is a Supreme Court of Mexico case, that related to the authentication of social media evidence o 17 year old who became FB friends with a former schoolmate, 19 years old.
  • They met up and as the night ended she took his car and cashed it into a fence. She of course told a different story. The state wanted to use the FB messenger as evidence where she admitted she was drunk and totaled his car.
  • The issues was if the State met the threshold for authenticating the FB messenger evidence.
  • The Supreme Court found that the appearance of the messages, the disputants’ frequent prior Facebook Messenger communications, and the content of the messages, were all sufficient to support that the screenshots of those messages were, more likely than not, what they purported to be and therefore, the State’s authentication showing was sufficient to support a finding that, more likely than not, the Facebook Messenger account used to send the messages belonged to Jesenya O. (Child).
• Walker v. Harley-Anderson, 301 So. 3d 299, 302 (Fla. 4th DCA 2020).
  • This is an appeal of a final judgment of injunction for protection against stalking, where it was alleged that the trial court erred by admitting text messages showing threats made, which was the sole evidence to support the entry of the injunction.
  • The court reasoned: “Testimony that a person received a text or email from another is not sufficient, by itself, to authenticate the identity of the sender.” To authenticate need other circumstantial and corroborating evidence.
  • Accordingly, the Fourth DCA, held that the trial court abused its discretion in admitting the text messages into evidence and reversed the final judgment as these text messages were the sole evidence considered in granting summary judgment.
• Uniters N. Am., LLC v. ServeCo Int’l, Inc., 8:21-CV-2381-CEH-AAS, 2022 WL 4464846, at *10 (M.D. Fla. Sept. 26, 2022).
  • The Wayback Machine is an initiative of the Internet Archive, a 501(c)(3) nonprofit, building a digital library of Internet sites and other cultural artifacts in digital form.
  • “The weight of authority suggests that WayBack Machine screenshots, alone, do not carry sufficient authenticity to be considered “undisputed” in the [Fed. R. Civ. P.] 12(b)(6) [Motion to Dismiss] context.”
  • Court noted that “many courts have found that content from the WayBack Machine is not self-authenticating.” 7

CHAT GPT / CO-COUNSEL MENTION

• Fla. Bar. Ethics Opinion 24-1 (Jan. 19, 2024).
  • “Lawyers MUST ensure that the confidentiality of client information is protected when using generative AI by researching the program’s policies on data retention, data sharing, and self-learning. Lawyers remain responsible for their work product and professional judgment and MUST develop polices and practices to verify that the use of generative AI is consistent with the lawyer’s ethical obligations. . .”

Chat GPT Cases

• Mata v. Avianca, Inc., 22-CV-1461 (PKC), 2023 WL 4114965, at *12 (S.D.N.Y. Jun. 22, 2023).
  • New York US Southern District Court correctly penalized attorneys found relying on ChatGPT. When it was discovered that they used ChatGPT created filings that included “non-existent judicial opinions with fake quotes and citations,” and failed to admit this usage when questioned by the court. The judge noted the harm caused by relying on ChatGPT, including wasting time, money, and resources in “exposing the deception” and the client being deprived of authentic arguments.
  • https://www.cbsnews.com/colorado/news/colorado-lawyer-artificial-intelligencesuspension/
    • A Judge ordered a Colorado attorney to a one year and one day suspension after he allegedly “cited case law that he found through the artificial intelligence platform ChatGPT” to to draft a motion in a civil case in May. The platform them produced cases that were incorrect and fictitious. 8