Federico et al v. Lincoln Military Housing, LLC et al
Filing
405
ORDER granting in part and denying in part 309 Motion for Sanctions. The Plaintiffs shall bear the cost of expert production of electronic media in the amount of $29,220.04. (ECF No. 372-1, at 3). The court shall also award a portion of the fees incurred by the Defendants in bringing the Motion to Compel after evaluating the facts required by Rule 37(a)(5)(A). To the extent Defendants' motion sought other or further relief, it is DENIED. Signed by Magistrate Judge Douglas E. Miller and filed on 12/31/14. (tbro)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
SHELLEY FEDERICO, et al.,
Plaintiffs,
v.
CaseNo.:2:12-ev-80
LINCOLN MILITARY HOUSING, LLC, et al.,
Defendants.
OPINION AND ORDER
In these consolidated claims for personal injury and property damage allegedly arising
from mold in military housing, contentious discovery disputes have produced 28 contested
motions, including several motions for sanctions and reciprocal requests for costs and fees
related to the parties' alleged non-compliance. The Court resolved most of the previous disputes
from the bench, or in brief written orders entered after oral argument. (ECF Nos. 110, 182, 249,
279, 315, 325, 337, 362, 370, 384, 387, and 391). This Memorandum Order resolves the most
contentious and expensive disagreement involving the Defendants' requests for Plaintiffs'
electronic media, including text messages, email and social media posts.
In the sixteen consolidated cases, eight military families filed suit with allegations
primarily against Defendant Lincoln Military Housing, LLC ("Lincoln"), a contractor engaged
by the United States Military to manage government-owned housing used by active duty
military. The Plaintiffs allege various illnesses and property damage they experienced were
caused by Lincoln's failure to maintain the properties, or properly remediate the properties after
mold was discovered.
Lincoln, and the other Defendants alleged to be responsible for the
deficient response, deny liability.1
I. FACTUAL BACKGROUND
Even before suit was filed, Lincoln was aware that some of the Plaintiffs were very active
users of email and social media. Lincoln's attorneys had visited Plaintiffs' publically available
Facebook pages, as well as Facebook groups and other pages set up specifically to deal with the
issue of mold and mold-related injuries. As a result, in January 2012 defense counsel sent a
preservation letter to the first identified Plaintiff, Shelley Federico, roughly three months after
she moved out of the subject housing, see Compl. U 56 (ECF No. 1-1, at 16-17). The letter,
directed to her counsel, outlined Defendants' requests that she preserve and eventually produce
electronic media. Among other things, the letter purported to require Ms. Federico to preserve:
1.
2.
Internet and web browser history files.
Potentially relevant texts and email messages.
3.
Social media postings concerning their claims in the lawsuit and claimed
damages.
4.
Any photo or video images of the subject properties.
The four-page letter also demanded that Ms. Federico and her counsel make a written
response confirming their receipt of the letters, their understanding of the obligations they
impose, and that they "have imaged their computers and related devices." (ECF No. 285-2, at
22).2 Thereafter, as suits commenced discovery was permitted but the District Court limited
discovery to issues involving liability which were then set for a consolidated trial in October,
2014. Defendants served interrogatories and requests for production seeking all of this material
from each Plaintiff.
1 Plaintiffs' allegations are reviewed in greater detail in the Court's Opinion and Orders on Plaintiffs'
Motion to Remand, see 901 F. Supp. 2d 654, and Defendants' Motions to Dismiss, see 2013 WL
5409910.
2 It is not clear from the record whether any other Plaintiff received a preservation letter. Plaintiffs'
counsel asserted that no other Plaintiffs received a separate letter and defense counsel did not contest this
assertion in reply. All Plaintiffs are represented by the same attorney. Neither Ms. Federico nor her
counsel agreed to the demand for written confirmation.
Although the detailed preservation letter should have signaled to Plaintiffs' counsel the
seriousness with which Defendants would pursue electronic discovery, their initial response
included almost no production of electronic records. In fact, most of the Plaintiffs produced no
electronic media of any kind. Those that did, produced only a few printed copies of emails, but
no original emails, no social media posts and no text messages.
On June 4, 2014, the Court held the first hearing on discovery disputes, which came on
Plaintiffs' motions for Protective Orders seeking relief from Defendants' requests for production,
and certain subpoenas. E.g., (ECF Nos. 211, 228). For unrelated scheduling purposes, many of
the Plaintiffs were present in court at the hearing. In response to Defense counsel's description
of the meager production, Plaintiffs' counsel made a familiar assertion, advising the Court that
he had not withheld anything, but had produced all electronic media which had been provided to
him by his clients. He then noted that his clients were "heavy users of email" and that he
perceived they did "not quite understand how comprehensive [their production] had to be."
(ECF No. 259, at 22). The Court admonished the assembled Plaintiffs to turn over related
material to their attorney and permit counsel to determine whether it was relevant. The Court
also advised the Plaintiffs that there could be consequences if materials were not provided as
required by the Rules. Id. at 29-30. The Court also retained under advisement Lincoln's request
for costs and fees associated with the lack of production.
Despite the Court's guidance, the Plaintiffs produced few additional emails, but
continued to communicate with counsel concerning their ongoing efforts to search for electronic
media and produce additional responsive material. On June 23, 2014, Defendants filed a motion
to compel various forms of discovery.
(ECF No. 263).
On June 24, Plaintiffs produced a
supplemental production of the then-seven families involved in the consolidated cases.
The
supplemental production did include additional email and social media posts, but five families
produced no social media and of the two that did, only a handful of posts were provided in hard
copy. On June 25, 2014, the Court held a second previously scheduled hearing and reviewed
additional arguments on compliance. Defendants again expressed their disbelief that Plaintiffs'
production was complete, particularly with regard to their extensive use of social media.
Plaintiffs seemed to concede the point, with their counsel stating they had engaged an outside
vendor, Sensei Enterprises, to provide estimates and design a search protocol for electronic
media. Later the Plaintiffs received a cost estimate for Sensei's work to perform "email and
social media recovery" from Plaintiffs' accounts. (ECF No. 284, at 9). The proposal described
costs which were then estimated to be $22,450.00, and Plaintiffs requested that the Defendants
agree to bear this cost of electronic production. The Court did not order a forensic exam nor
allocate the expected cost to the Defendants, as it perceived that additional production by a
thorough self-directed search would yield sufficient results.
On July 10, 2014, Plaintiffs requested an emergency hearing in an effort to extend the
Court's previously imposed deadline for production of electronic records. The hearing convened
by phone and Plaintiffs' counsel again explained that the volume of material to be searched
could not be completed prior to the extended deadline which was then set at July 17, 2014.3 (Tr.,
ECF No. 286). After hearing Plaintiffs' arguments and Defendants' response, the Court declined
to extend the deadline and advised Plaintiffs' counsel that if Plaintiffs were unable to produce
any more responsive documents, they were required to advise the Court and Defendants of the
nature of any search they had performed. Specifically, the Court required that they advise in
writing the nature of the accounts they had examined, what folders and materials were present in
The consolidated trial previously scheduled for October, 2014 was later continued for other reasons, and
is presently set for April, 2015.
the accounts, including the last available dates of materials presently saved and accessible to
them, in order to establish whether their failure to produce materials resulted from routine
deletion or from some other obstacle. (ECF No. 286, at 15).
The Court was reluctant to allocate responsibility for the contractor's estimated cost of
reviewing the Plaintiffs' various email accounts and social media noting that the electronic data
should be available to the individual Plaintiffs. The Court provided the following direction to the
parties:
This data is available to them and they should be able to get it, and it's crazy to
have to pay somebody $22,000.00 to do what they should be able to do within a
matter of an hour or an hour and a half of looking through their own files. And if
they are unwilling to do that, then I will entertain a request for sanctions. And
those sanctions may include the cost of having a professional engaged to produce
them. So you should share your cost estimate with your clients, because it is
within the Court's power, if there has been noncompliance, to order them to pay
those costs .... I'm going to require that they produce those materials and an
explanation of how they examined their own social media and email accounts to
generate the responsive materials. So if they're producing zero, there had better
be a very detailed explanation of where they looked.
Id. (emphasis added).
The Plaintiffs failed to meet the July 17 production deadline, but they did produce letters
describing their search criteria.
The letters varied widely in the diligence reported.
Some
Plaintiffs produced detailed descriptions of their extensive efforts to identify responsive email
and social media. Others indicated they had turned over account names and passwords and left
the matter entirely in the hands of their attorneys. The lead Plaintiff, Ms. Federico, described in
precise detail the correct method for downloading Facebook's activity log, but it appears no
other Plaintiff was instructed on how to accomplish this relatively straightforward task.4 A few
specifically referenced their decision to pay a portion of the cost to retain an expert to search and
4Facebook also provides detailed guidance on the information available and the process for downloading
a copy. Accessing Your Facebook Data, facebook.com/help/405183566203254 (last visited December
17,2014).
produce their electronic data, although the Court had not imposed the use of a forensic expert or
allocated the cost.
On July 31, 2014, Defendants filed their Motion for Sanctions. (ECF No. 309). The
supporting brief argued that Plaintiffs' failure to produce texts, email, and other electronic media
had severely compromised Defendants' ability to proceed with depositions and prepare for trial.
The motion sought only one sanction, dismissal of Plaintiffs' claims for failure to comply.
Plaintiffs opposed the sanctions motion (and several others), and on August 20, 2014, the Court
heard oral argument on the outstanding discovery matters. Relevant to this dispute, Plaintiffs
proffered at that hearing that they had engaged their IT consultant, who was working to search
and produce relevant records, primarily from social media. The consultant was present and
described the ongoing process for searching and processing the Facebook records using
previously agreed upon search terms. He stated that the process of analyzing the records had
produced 4.2 million "artifacts" from the parties' various Facebook accounts, a number which
eventually rose to 4.5 million artifacts from fifteen different accounts. (Decl. of John McCabe,
ECF No. 389-1, at 93). He stated that he expected the eventual production after applying the
search terms and eliminating duplicates to include thousands, or perhaps tens of thousands of
records.
At the hearing, the Court noted that the information sought was discoverable and had not
been timely produced despite the Court's order.
Nevertheless, the undersigned expressed
skepticism that the material eventually produced would yield much that was relevant to the
liability phase of the trial. As a result, the Court deferred any ruling until after the consultant's
production, but observed at the hearing:
I'm not going to make any final decision [on a sanction] until I know what is
disclosed in the Facebook materials because I have the same concern that you just
articulated, and that is that if Sensei produces 30 pages of material and there's
three relevant posts, then I'm not going to be inclined to fashion much of a
sanction for not producing more email. But on the other hand, if that Facebook
material produces 50 or 60 highly relevant instances of inconsistent statements,
then I might well have to fashion a more severe sanction for them not having
access to the other electronic records.5
(ECF No. 338, at 170).
In September, Plaintiffs produced the results of their consultant's search, including over
5,000 records from social media. Almost immediately thereafter, Defendants began deposing
Plaintiffs and other witnesses.
In November, the parties filed supplemental briefing on the
outstanding issue of sanctions relating to production of electronic media. Defendants' briefing
argues that the September production, combined with other records already produced, is still
inadequate and that the relevance of the material which was produced demonstrates the severe
consequences flowing from data which Defendants contend is missing, lost or destroyed.
Plaintiffs responded and argued the exact opposite.
They claim that the material already
produced - over 5,500 Facebook posts and over 1,300 emails - includes almost all of the
discoverable electronic evidence, and demonstrates the minimal relevance of the electronic
media to the liability issues which will be contested in the April trial. In addition, Plaintiffs
contend that any material omitted resulted from their clients' inexperience in managing
electronic production and not from bad faith or intentional destruction of evidence. Combined,
the parties' briefing and exhibits on this motion alone totals 2,233 pages. See (ECF Nos. 310,
330, 332, 373, 389, 392). Again, the only sanction Defendants specifically request is dismissal,
but their brief also refers more generally to "those sanctions [the Court] deems appropriate
against Plaintiffs and their counsel." (ECF No. 373, at 30).
After reviewing the parties' briefing, exhibits, and the five-month history of the discovery
5Later in this same exchange the Court observed that text messages would not likely be encompassed in
this evaluation, given the marginal relevance of such records. (ECF No. 338, at 170-71).
7
disputes over this and other evidence, the Court, for the reasons that follow, declines to impose
any further sanction against Plaintiffs beyond the $29,000 expense associated with their expert's
production of the Facebook records, but will award a portion of the reasonable attorney's fees
associated with the original motion to compel. (ECF No. 263).
II. STANDARD OF REVIEW
Defendants' request for sanctions implicates the Court's authority to police discovery
noncompliance under three separate, but overlapping standards.
First, as nearly all of the
electronic production occurred after Defendants' first Motion to Compel, Rule 37(a) provides a
means to reallocate the costs of that compelled production. With regard to a motion to compel
discovery specifically, Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure provides:
If the [discovery] motion is granted-or if the disclosure or requested discovery is
provided after the motion was filed—the court must, after giving an opportunity to
be heard, require the party or deponent whose conduct necessitated the motion,
the party or attorney advising that conduct, or both to pay the movant's reasonable
expenses incurred in making the motion, including attorney's fees. But the court
must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain
the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was
substantially justified; or
(iii) other circumstances make an award of expenses unjust.
The plain language of Rule 37(a) permits monetary sanctions, including fees and
reasonable expenses, if the non-disclosure is not substantially justified, and the movant attempts
in good faith to resolve the dispute without court action. Fed. R. Civ. P. 37(a)(5)(A).
Second, extensive additional production occurred after the expired deadlines set by the
Court's initial orders on the Motion to Compel. As a result, the sanction remedies under Rule
37(b) and (c) apply. The Fourth Circuit has established a four-part test to help decide whether to
impose sanctions for discovery violations. The court must determine (1) whether the non-
8
complying party acted in bad faith, (2) the amount of prejudice that noncompliance caused the
adversary, (3) the need for deterrence of the particular sort of non-compliance, and (4) whether
less drastic sanctions would have been effective. Belk v. Charlotte-Mecklenberg Bd. Of Educ,
269 F.3d 305, 348 (4th Cir. 2001); Anderson v. Found, for Advancement, Educ. and Emp't of
Am. Indians, 155 F.3d 500, 504 (4th Cir. 1998) (citing Wilson v. Volkswagen of Am., Inc.. 561
F.2d 494, 505-06 (4th Cir. 1977)). While all four factors are relevant to the Court's exercise of
discretion, a finding of bad faith is not a necessary precursor to imposing attorney's fees and
costs incurred as a result of a party's failure to comply with discovery. See Southern States Rack
and Fixture. Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir. 2003). However, because
the information sought is almost entirely electronically stored, the sanctions request is subject to
Rule 37(e) which bars sanctions under the Rules for failing to provide information lost "as a
result of the routine, good-faith operation of an electronic information system," absent
exceptional circumstances. Fed. R. Civ. P. 37(e).
The third standard relates to Defendants' claim of spoliation. Because they also alleged
the Plaintiffs destroyed or irretrievably lost relevant evidence, their sanction request implicates
the Court's inherent power to remedy spoliation of evidence. Silvestri v. Gen. Motors Corp., 271
F.3d 583, 590 (4th Cir. 2001). In this Circuit, to prove that spoliation of evidence warrants
sanction, the party seeking the sanction must show:
(1)
The party having control over the evidence had an obligation to preserve it
when it was destroyed or altered;
(2)
The destruction or loss was accompanied by a "culpable state of mind;"
and
(3)
The evidence that was destroyed or altered was "relevant" to the claims or
defenses of the party that sought the discovery.
Goodman v. Praxair Svcs.. Inc.. 632 F. Supp. 2d 494, 509 (D. Md. 2009). A party's duty to
preserve evidence "arises not only during litigation but also extends to that period before the
litigation when a party reasonably should know that the evidence may be relevant to anticipated
litigation." Silvestri, 271 F.3d at 591. A party breaches this duty when it fails to act reasonably
to preserve material evidence. Victor Stanley. Inc. v. Creative Pipe. Inc., 269 F.R.D. 497, 525
(D. Md. 2010). The right to impose sanctions for spoliation derives from the Court's inherent
power to control the judicial process in litigation, but it is limited to that necessary to redress
conduct "which abuses the judicial process." Silvestri, 271 F.3d at 590 (quoting Chambers v.
NASCO. Inc., 501 U.S. 32, 45-46 (1991)).
The Court's power to remedy spoliation includes a variety of sanctions from dismissal or
default judgment to the preclusion of evidence or imposition of an adverse inference. Goodman.
632 F. Supp. 2d at 506. But the harsh sanction of dismissal or default requires a showing of "bad
faith" or other "like action" unless the spoliation was so prejudicial that it prevents the nonspoliating party from maintaining his case. Silvestri. 271 F.3d at 593 (quoting Cole v. Keller
Indus., Inc.. 132 F.3d 1044, 1047 (4th Cir. 1998)). While sanctions for spoliation require some
showing of fault, assessments of the level of culpability primarily inform selection of an
appropriate sanction, not whether spoliation has occurred in the first instance.
EI du Pont
deNemours v. Kolon Indus.. 803 F. Supp. 2d 469, 498 (E.D. Va. 2011).
III. ANALYSIS
The Defendants' motion primarily seeks dismissal, the harshest sanction reserved for
either severe misconduct or the loss of evidence central to their defense. Indeed, where dismissal
is ordered, it usually follows the intentional bad faith destruction of evidence which was central
to the issues in dispute. See, e.g., Hosch v. BAE Svs. Info. Solutions, Inc.. No. I:13cv825, 2014
WL 1681694, at *1 (E.D. Va. Apr. 24, 2014) (dismissing employment retaliation case with
10
prejudice where the plaintiff permanently deleted all data on an iPhone and a Blackberry after a
Court Order and two days before turning them over for examination); Taylor v. Mitre Corp.. No.
I:llcvl247, 2013 WL 588763, at *1 (E.D. Va. Feb. 13, 2013) (dismissing employment claims
where the plaintiff previously smashed a work computer with a sledge hammer and ran
specialized programs to delete information on his laptop in direct response to an Order to
surrender the laptop). As set forth in greater detail below, no category of Plaintiffs' electronic
evidence in this case is so central to the defense that its loss would deprive the Defendants of
their ability to defend.
Silvestri, 271 F.3d at 583.
In addition, Defendants have failed to
establish that any Plaintiff deliberately destroyed evidence known to be relevant, or otherwise
acted in bad faith. While Plaintiffs' delayed production should not have required Court action,
they did eventually produce a nearly complete record of email and social medial posts and these
materials were available to Defendants prior to most of the depositions. In addition, the limited
relevance of the voluminous material produced suggests that any gaps in production were not
likely intentional and do not prejudice Lincoln's defense.
Although the extensive electronic evidence eventually produced demonstrates some
inconsistency in individual allegations underlying specific complaints, the conflicts do not
fatally, or even substantially undermine any Plaintiffs' claim. Moreover, their impact on any
responsible party's credibility may be fully exposed at trial. As a result, viewing the discovery
record as a whole, the consistency of the records which were produced supports Plaintiffs' claim
that any missing information was likely cumulative, and not lost due to any party's culpable
conduct. As a result, Defendants cannot demonstrate either prerequisite for the ultimate sanction
of dismissal for spoliation or failure to comply with a Court Order under Rule 37(b) or (c).
Silvestri. 271 F.3d at 593; Cole. 132 F.3d at 1047; Hosch. 2014 WL 1681694 at *5.
11
Nevertheless, nearly all of the electronic production occurred after the motion to compel.
The parties' depositions demonstrate they were either initially poorly instructed or deliberately
dilatory in their obligations to search for and produce responsive media. Accordingly, despite
the marginal relevance of the electronic media which was produced, the costs of insuring a
complete production, including the $29,000 fee for the production, will remain with the
Plaintiffs. In addition, the Court will award, under Rule 37(a), a portion of the attorney's fees
incurred in preparing and arguing the original motion to compel (ECF No. 263), following an
opportunity to evaluate the circumstances which affect such an order under Rule 37(a)(5)(A)(iii).
A.
No sanction is warranted for text messages lost as a result of good faith
operation of Plaintiffs' smart phones.
Although not central to their argument, Defendants contend that sanctions are warranted
for Plaintiffs' failure to produce text messages, despite evidence that several of the Plaintiffs
communicated by text during the relevant time period. Plaintiffs do not dispute that they have
failed to produce text messages, but argue that their text messages would not be relevant to any
contested issue, and were irretrievably lost prior to any of them being made aware that they
would be specifically sought in discovery. After evaluating the extensive production of other
electronic media and under the facts of this case, the Court does not find Plaintiffs' loss of access
to their text messages to have been in bad faith. As a result, sanctions for their loss are precluded
under Rule 37(e) and not warranted under the Court's inherent authority to remedy spoliation.
Rule 37(e) provides: "Absent exceptional circumstances, a court may not impose
sanctions under these rules on a party for failing to provide electronically stored information lost
as a result of the routine, good-faith operation of an electronic information system."
This
subsection was added in 2006 to address "the routine alteration and deletion of information that
12
attends ordinary use." Fed. R. Civ. P. 37(e) advisory committee note. Although the advisory
committee's notes state that Congress directed the rule at "computer operations," the rule is
equally applicable to cell phones, especially smart phones, which run on operating systems
similar to computers. Id
As discussed below, the storage of text messages, between the cell phone device, the
service providers and computer back-up certainly "includes the alteration and overwriting of
information, often without the operator's specific direction or awareness." Id.
Moreover, it is
"routine" in that there are default systems in place by carriers and device operating systems that
control storage of text messages.
Finally, the complex, automatic, and robust operation of
cellular services constitutes an "electronic information system." See Summary of the Report of
the Judicial Conference Committee on Rules of Practice & Proc. 168 (Sept. 20, 2005),
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/ST09-2005.pdf
(describing
"electronic information systems" as programs that involve: recycling storage media kept for brief
periods; automatically overwriting information that has been "deleted"; automatically discarding
information "that has not been accessed within a defined period or that exists beyond a defined
period without an affirmative effort to store it for a longer period").
Because Rule 37(e) governs Plaintiffs' failure to produce text messages, the issue is
whether Plaintiffs' inability to produce those messages occurred "as a result of the routine, goodfaith operation of an electronic information system." Fed. R. Evid. 37(e). Based on the normal
operation of cell phones and service providers, the Court finds that Plaintiffs' failure in this case,
resulted from the routine, good-faith operation of their phones, and therefore, Rule 37(e)
precludes sanctions under the Federal Rules.
13
It bears mention again that Plaintiffs' allegations involve claims arising from mold and
mold damage in their former homes and the Defendants' alleged failure to remediate that mold.
The timing and frequency of texts sent or received by any Plaintiff would have no relevance to
these issues. It is possible that a Plaintiff may have sent a text - the content of which would be
relevant, but only if the message related to the time they were residing in the home. As a result,
under the facts of this case, no Plaintiff was on notice of an obligation to preserve such texts
when their affirmative efforts could have prevented loss of the messages.
Unless the individual plaintiffs intentionally backed up their text messages to their
computer or a cloud-based service, then the content of their messages would only be stored on
their devices. Among major carriers Verizon, T-Mobile, Sprint, and AT&T, only Verizon retains
text message content.
Retention Periods of Maior Cellular Service Providers, U.S. Dep't of
Justice, Computer Crime and Intellectual Property Section (August 2010), available at
http://www.pcmag.eom/image_popup/0,1740,iid=313504,00.asp. However, Verizon only keeps
that information for three to five days.6 Id. Additionally, storage on the device varies by device.
See Text Messaging FAQs, Verizon Wireless, http://www.verizonwireless.com/support/textmessaging-faqs/. The Court has no evidence before it on the text messaging applications on the
various phones that Plaintiffs may have used.
6In contrast, Verizon retains call and text detail records (not content) for one year. T-Mobile keeps the
same information for five years, AT&T for five to seven years, and Sprint for eighteen to twenty-four
months. See supra, DOJ Information.
7However, some research indicates that if a user frequently sends and receives text messages, then the
device's storage space will be filled more quickly, and the older messages will be lost more quickly
because most devices automatically delete older messages in order to make room for new ones or prompt
the user to delete old messages. See Thomas McNish, How Long Does an iPhone Store a Deleted SMS?,
eHow (last visited Decl. 10, 2014), http://www.ehow.com/info_12168930_long-iphone-store-deletedsms.html: see also U.S. Legal Support, Inc. v. Hofioni, No. 2:13-CV-1770. 2014 WL 172336, at *4 (E.D.
Cal. Jan. 15, 2014) (summarizing expert testimony on same). Service providers often recommend that
users delete old messages to maximize a phone's efficiency and performance. See Dep. of Nicole
Harding, Tr. at 245-46 (ECF No. 373-14, at 5-6) ("My phone won't run if there are text messages taking
up the data. That's what they told me at the Sprint store."); supra. Text Messaging FAQs, Verizon
14
Based on the record here, Defendants have not shown that Plaintiffs acted in bad faith by
failing to preserve text messages during a time when their preservation was feasible. Rather,
Plaintiffs' failure to produce any text messages from the time they lived in the subject housing
resulted from either the routine operation of their phones' service provider or their routine good-
faith maintenance of their phones. Plaintiffs were already examined on their efforts to obtain
text messages. E.g., Dep. of Nicole Harding, Tr. at 246 (ECF No. 373-14, at 6); Letter of Abbee
Brandsema (ECF No. 310-2, at 40) ("I have contacted Verizon Wireless and been informed with
no uncertainty that text messages cannot be reproduced after they have been deleted."); Letter of
Monica Chan (ECF No. 310-2, at 23) (describing her efforts to obtain lost text messages); Dep.
of Heather Coleman, Tr. at 214 (ECF No. 373-13, at 5) (expressing her lack of awareness of a
need to manually preserve electronic information including text messages); Letter of Rachel
Delorey, July 13. 2014, at 3 ("I have contacted Verizon . . . and asked for print outs of text
messages to and from specific persons that I thought I may have had conversations with.");
Letter of Shelley Federico, July 14, 2014, at 3 (stating that she called Verizon Wireless and
followed-up in a local Verizon store). Moreover, the fact that Plaintiffs are individuals whose
devices are solely for personal use informs what constitutes a "routine, good-faith operation."
Fed. R. Civ. P. 37(e). R&, Painter v. Atwood. No. 2:12cvl215, 2014 WL 1089694, at *6-7 (D.
Nev. Mar. 18, 2014) (holding that the movant failed to show that an individual plaintiff and her
co-worker should have been on notice that they needed to save text messages before litigation).
Cfi Nucor Corp. v. Bell, 251 F.R.D. 191, 199 (D. S.C. 2008) (holding corporate party liable for
spoliation by continuing to use a laptop when it was under a duty to preserve the data on its hard
drive).
Wireless ("Once your inbox is full, you won't be able to receive new messages until you delete old
messages to create additional space.").
15
The Defendants' reply brief goes to some length to establish that certain Plaintiffs
anticipated litigation long before suit was filed. But anticipating litigation only gives rise to a
duty to preserve what the party knows will be relevant evidence.
As one district court
characterized it:
While a litigant is under no duty to keep or retain every document in its
possession once a complaint is filed, it is under a duty to preserve what it knows,
or reasonably should know, is relevant in the action, is reasonably calculated to
lead to the discovery of admissible evidence, is reasonably likely to be requested
during discovery and/or is the subject of a pending discovery request.
Wm. T. Thompson Co. v. General Nutrition Corp.. 593 F. Supp. 1443, 1455 (CD. Cal.
1984) (citations omitted).
That is, the duty to preserve does not arise until the party in
possession of the evidence has notice of its relevance. See Turner v. Hudson Transit Lines, Inc.,
142 F.R.D. 68, 72 (S.D.N.Y. 1991). Indeed, several Plaintiffs were examined on their
preservation efforts and testified to preserving files and other papers associated with the mold
issue.
The Court has no evidence before it to demonstrate how long, if at all, Plaintiffs' various
devices store text message information.
Because of the normal operation of cell phone
messaging systems and the fleeting nature of text messages, Plaintiffs likely would have needed
to take affirmative steps to produce their text messages in a different format on a different
platform in order to "preserve" their content. Although the steps may have not been burdensome
to Plaintiffs, there is no evidence 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. Accord Painter, 2014 WL 1089694, at *6-7 (Individual plaintiff "was not on notice to
preserve the deleted texts at the time she deleted them."). To hold otherwise would require these
16
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. At most, the few tangential references to texting in the other electronic media
suggest the Plaintiffs may have texted each other, or third parties. Lincoln has produced no text
messages of its own from any Plaintiff.
This suggests either that the Plaintiffs did not
communicate with Lincoln by text, or that Lincoln officials with whom they did communicate
did not preserve the received texts.
The loss of Plaintiffs' text messages in this case was the result of the routine, good-faith
operation of their phones.
Because Defendants have not presented any "exceptional
circumstances" with respect to the loss of text messages, Rule 37(e) precludes sanctions against
Plaintiffs for their inability to produce text messages under the Federal Rules of Civil Procedure.
Rule 37(e) does not affect sanctions based on the court's inherent power because it only bars
sanctions for lost electronically stored information "under [the Federal] rules." Fed. R. Civ. P.
37(e); see k_ advisory committee note to the 2006 amendment; Nucor Corp. v. Bell. 251 F.R.D.
191, 196 n.3 (D. S.C. 2008). However, the court's inherent spoliation power "is limited to that
necessary to redress conduct 'which abuses the judicial process.'" Silvestri. 271 F.3d at 590
(quoting Chambers v. NASCO. Inc.. 501 U.S. 32, 45-46 (1991)). Here, because Plaintiffs did
not have a duty to take the steps necessary to preserve text message content at a time when any
relevant content could have been preserved, the Court finds that Defendants have not established
p
the elements of spoliation and therefore, sanctions are not warranted.
8Because the Court finds that Defendants have failed to prove the first element required for imposing
spoliation sanctions, the Court need not address the latter two elements: culpable state of mind and
relevance. See Cvtec Carbon Fibers. LLC v. Hopkins. No. 2:1 lcv217, 2012 WL 6044778, at *2-3 (D.
S.C. 2012). Nevertheless, it is clear that Plaintiffs committed no willful destruction of relevant evidence.
17
B.
Plaintiffs' nearly complete production of emails does not warrant sanction,
given the volume of materials which were produced and their marginal relevance.
Defendants also seek sanctions against Plaintiffs for their failures in e-mail production.
In their original sanctions motion filed on July 31, 2014, Defendants sought sanctions for
Plaintiffs' "failure to comply with the Court's June 4, July 10 and July 17 Orders and other
discovery violations." Defs.' Br. (ECF No. 310, at 17). Thereafter, Plaintiffs produced some
additional electronic information, most notably a comprehensive September 3, 2014 production
of Facebook records.
In addition to Plaintiffs' general tardiness in producing e-mails,
Defendants now point to two specific e-mail accounts that either were not originally disclosed at
all or that Plaintiffs have allegedly failed to review for responsive e-mails.9 They also point to
instances of email production by one party of an email copied to, but not produced by another, as
evidence that certain Plaintiffs have failed to produce sufficient email. Plaintiffs respond
generally that, with the exception of one account of George Sulligan's, no relevant e-mails
remain undisclosed or were spoliated. See Pis.' Supp. Br. (ECF No. 389, at 5). As of September
26, 2014, Plaintiffs had produced 1,330 e-mails. (Decl. of Laurie Dowling-Mclntire Att. 1 (ECF
No. 369-1, at 17)).
And, although Defendants may have recovered impeachment evidence or contributory negligence
evidence, the relevance of lost text messages appears marginal particularly in light of the extensive
production from email and social media. See, e.g.. U.S. Legal Support. Inc. v. Hofioni. No. 2:13-CV1770, 2014 WL 172336, at *4 (E.D. Cal. Jan. 15, 2014) (holding that the movant had failed to offer
enough evidence for the court to conclude that relevant evidence had in fact been spoliated).
9 In their Supplemental Brief (ECF No. 373), Defendants argue about a third e-mail account:
meagan.sulligan@gmail.com. The September 3, 2014 Facebook production showed that Ms. Sulligan
updated her status on Facebook on January 10, 2012 with: "Add me on google +
meagan.sulligan@gmail.com to stay up to date on our fight against Lincoln!" (ECF No. 373-6, at 55).
Defendants initially stated that this account was never disclosed to them or to the Court, but then in their
Reply, Defendants concede that they were mistaken. Ms. Sulligan did disclose this account. Defs.' Reply
(ECF No. 392, at 5 n.5). Thus, the undersigned will not consider this account as part of Defendants'
argument for sanctions.
18
First, Defendants express
militarymoldwarriors@gmail.com.
particular concern
about
an
email
account titled
This was an account created by Plaintiff Meagan Sulligan,
and shared with Plaintiff Nichole Harding on March 17, 2012. It was not disclosed by either in
response to interrogatories, but discovered by Defendants in their review of Plaintiffs' September
3, 2014 Facebook production. Decl. of Connie Bertram U4 (ECF No. 373-4, at 2). Defendants
now claim that their "inspection of that account leads them to believe that emails and/or
metadata in that account may have been spoliated." Defs.' Supp. Br. (ECF No. 373, at 13). In
response to Defendants' inquiry about the account, Ms. Sulligan declared, "I do not remember
setting up the account, why the account was set up, or any other circumstances surrounding the
account." Decl. of Meagan Sulligan % (ECF No. 373-5, at 6).
3
On March 17, 2012, Ms. Sulligan sent the email address and password for the
militarymoldwarriors email account to Ms. Harding. Ms. Harding also has no specific memory
of using the account and declared that she "can only speculate as to the purpose of the account."
Decl. of Nichole Harding 14 (ECF No. 373-5, at 16). Plaintiffs' counsel's review of the account
showed it to be unused. E-mail from Tammy Belinsky to Connie Bertram (Sept. 24, 2014, 10:02
AM), (ECF No. 373-5, at 21).
Defendants were permitted access to the account and their
computer forensics expert reviewed it and found seven e-mails in the inbox.
Christopher Racich H 5 (ECF No. 392-4, at 2).
Decl. of
Four had been received in the account on
September 25, 2014 in relation to the password reset used to access the account. The other three
were received on March 17, 2012 from the "Gmail Team" with tips and settings information
about setting up the account. k_ Ex. B (ECF No. 392-4, at 6-9). All other folders in the account
were empty. IdL ^| 6. Contrary to defense counsel's assertion, the forensic expert offered no
opinion on possible spoliation of messages or metadata. He only stated that "[b]ecause Plaintiffs
19
and/or their counsel logged into the militarymoldwarriors Gmail account on September 25, 2014
to change the password and then the recovery email address, [he] was not able to determine the
last time the account was accessed prior to that day." Id. H7.
The second e-mail address Defendants take issue with is jrsywild@gmail.com. This
account belonged to Plaintiff George Sulligan since 2010. Mr. Sulligan reported that he could
not remember the password to this account and has unsuccessfully tried to recover the password.
Decl. of George Sulligan fl 8-10 (ECF No. 373-6, at 52-53). He asserts that when he calls
"telephone numbers for Google, no one answers the telephone. I have never been able to find an
email address for Google or Gmail support." k_ H 10 (ECF No. 373-6, at 53). Mr. Sulligan
admits that he used the account to communicate with Defendants while the Sulligans resided in
their home. Id U 12 (ECF No. 373-6, at 53). Plaintiffs' counsel also concede that this account
may contain relevant e-mail. Pis.' Supp. Br. (ECF No. 389, at 3) ("[T]he only Plaintiff who has
relevant email that has not been produced from his own account is unable to access his email
account."). They also point out that Lincoln has in fact produced copies of the e-mails between
itselfandjrsywild@gmail.com. Pis.' Supp. Br (ECF No. 389, at 16). "Some [] third-parties"
have also produced e-mails exchanged with this account. Id.
Before analyzing the email production, the Court reiterates that Plaintiffs are individuals,
whose claims involve the Defendants' alleged failure to maintain their military-provided
housing. They did not use any centralized email facility, rather each had an account (or multiple
accounts) with consumer-oriented free email services such as Yahoo, Gmail and Hotmail. (Decl.
of Laurie Dowling-Mclntire, ECF No. 369-1, at 5). While the individual Plaintiffs resided in the
homes, the properties were managed by Lincoln under a long-term lease with the military. It was
Lincoln's obligation to respond to residents' complaints and to arrange appropriate repairs. As a
20
result, the Plaintiffs' allegations of liability, which relate to Lincoln's alleged failure to perform
these duties, will largely turn on evidence already in Lincoln's possession. However, certain
Plaintiffs separately engaged various cleaning or remediation contractors.
In addition,
admissions regarding the condition of their home, the severity of the mold or other problems, and
the scheduling or completion of repairs might be contained in relevant emails directed to parties
other than the named Defendants. As a result, the Court did order production of relevant emails,
but these third party emails would be substantially less probative on the liability issues scheduled
to be tried in April.
Notwithstanding these circumstances, and the Plaintiffs' collective production of over
1,300 emails from dozens of different accounts, Defendants argue that the deficiencies in their
production warrant severe sanctions.
Reiterating their original arguments for sanctions,
Defendants assert that "information uncovered since the August 20 hearing has shown that
Plaintiffs' noncompliance is even more wide-ranging than Defendants were previously aware."
Defs.' Supp. Br. (ECF No. 373, at 12).
Defendants argue that Plaintiffs' deficiencies
"demonstrate more than mere negligence; they demonstrate Plaintiffs' bad faith attempt to evade
their obligation to comply with this Court's Orders." Defs.' Br. (ECF No. 310, at 19). The
Court does not agree.
With regard to the two accounts specifically addressed in Defendants' motion, the Court
does not find any failure to produce email content warrants sanctions. The unused account
named militarymoldwarriors@gmail.com contained no responsive email. This is established by
the declarations of Ms. Sulligan and Ms. Harding and the Defendants' forensic examiner Mr.
Racich. When discovered, the reopened account contained only the original emails from Google
to arrange the account set up, as well as additional emails related to the password reset in
21
September, 2014. While the Defendants speculate that the account may have been used in the
interim and other emails deleted, they have identified no evidence supporting this claim or
refuting the multiple sworn statements which oppose it. Contrary to their argument, Defendants'
own forensic examiner did not state or imply that evidence was spoliated. He only stated that the
password reset (undertaken as a result of a Plaintiffs inability to recall creating the account)
prevented him from identifying when the account had earlier been accessed. Given that the
Plaintiffs' had no memory of the account, which was located on a third party server, accessing it
would be a necessary step to locating responsive, non-privileged email.
In fact, a sworn
declaration by Plaintiffs' paralegal established that after she reset the password, the original 2012
emails related to the setup of the account had never been opened, and the only other emails in the
account related to the 2014 original password reset. (Dowling-Mclntire Decl., ECF No. 369-1,
at 7). This hardly constitutes evidence that emails or other data had been deliberately or even
negligently destroyed. In addition, the Defendants have not identified a single email originating
from this account. Given the volume of electronic media already produced,10 this is more than
sufficient evidence to corroborate the Plaintiffs' position that the militarymoldwarriors account
went unused after it was created despite its suggestive title.
With regard to Mr. Sulligan's account titledjrsywild@gmail.com, the Plaintiffs concede
both that it may contain responsive email and they have been unable to produce them.
Defendants mischaracterize this admission in their brief, writing that Mr. Sulligan "had not
reviewed his account ... for responsive emails, even though he admits he 'used the account to
communicate' with Defendants." (ECF No. 373, at 13). While it is true that Mr. Sulligan "had
not reviewed" the account, his detailed affidavit opposing Defendants' motion describes his
10 Plaintiff Nicole Harding produced 315 emails, and Plaintiff Maegan Sulligan produced 365 emails.
(Summary of Electronic Production, ECF No. 369-1, at 17).
22
inability to gain access to the account, which is maintained on a Google server, and which he
stopped using in 2012 as a result of a change in his cell phone provider. (Sulligan Decl., ECF
No. 369-2, at 18-20). The same declaration authorizes the Defendant to obtain access to his
email content directly, subject to the terms of a previously entered Protective Order. Id.; see also
Electronic Communications Privacy Act, 18 U.S.C. § 2702(b)(3) (authorizing release of content
by remote computer service provider with consent of subscriber); In re Subpoena Duces Tecum
to AOL. LLC. 550 F. Supp. 2d 606, 609-12 (E.D. Va. 2008) (discussing the interplay of Rule 45
and 18 U.S.C. § 2702(b)). The Defendants did not respond to this suggestion, but it appears they
have not undertaken their own subpoena or other direct inquiry to Google despite the Sulligans'
permission.
After reviewing Mr. Sulligan's declaration, and the other email already produced, the
Court does not find that his inability to produce email from this particular account warrants
sanction. As set forth in detail elsewhere, the electronic evidence available from the Plaintiffs'
personal accounts is not the most probative evidence of liability.
To the extent any such
evidence was contained in this account, Mr. Sulligan attests that it would have included emails
directly from him to officials at Lincoln. Indeed, Lincoln acknowledges that other emails from
the jrsywild account have already been discovered. Mr. Sulligan has affirmatively stated that he
did not delete the account, and has invested considerable time in trying to comply with the
Court's prior Order notwithstanding the limited relevance of any additional material believed to
be in the account. Under these circumstances, and given the cumulative nature of any material
likely to be found, the Defendants' ability to separately subpoena Mr. Sulligan's account subject
to the terms of the Protective Order is an adequate remedy."
11 Both Mr. Sulligan and Plaintiffs' paralegal, Ms. Dowling-Mclntire, testified to their efforts to recover a
password and gain access to the account. Because the account was connected to a cell phone through a
23
Finally, in contrast to those cases where sanctions have been imposed for the loss of
electronic messages, Plaintiffs here did not act in bad faith or intentionally delete email to avoid
their discovery. Cfi Southeastern Mechanical Services, Inc. v. Brody, 657 F. Supp. 2d 1293,
1300-01 (M.D. Fl. 2009) (imposing sanctions after finding that individuals intentionally wiped
data from their business-related Blackberries in trade secrets case). Based on the sliding scale
that weighs relevance of the lost evidence and culpability, Plaintiffs must have acted in bad faith
to warrant an adverse jury instruction, or an even more severe sanction. See, e.g., E.I, du Pont de
Nemours. 803 F. Supp. 2d at 498 ("Assessing the quantum of fault becomes appropriate when
determining the appropriate sanction, not in deciding whether spoliation has taken place.");
Bashir v. Amtrak. 119 F.3d 929, 931 (11th Cir. 1997) (requiring bad faith for an adverse
inference). The Defendants' evidence does not establish that they did so. Accordingly, the
Court will not award sanctions for failing to produce additional email.
C.
Plaintiffs' Facebook production, though delayed, does not demonstrate bad
faith or prejudice sufficient to warrant severe sanctions.
The bulk of Defendants' briefing is devoted to argument regarding the insufficiency of
Plaintiffs' production of social media posts, particularly from Facebook. This dispute originated
even before the lawsuit when Defendants discovered that several of the Plaintiffs were prolific
posters on Facebook. Not only were several of the Plaintiffs' Facebook profiles public, but
certain Plaintiffs created and/or posted to special interest pages, including "Families Affected by
Military Housing Mold," "the Truth About Lincoln Military Housing in Hampton Roads," and
"Victims of Toxic Mold."
(ECF No. 373, at 10).
As a result, Defendants were justifiably
troubled by Plaintiffs' initial production which included no Facebook posts at all.
provider Mr. Sulligan no longer uses, account recovery from this non-party (Google) may not be
"reasonably accessible." Fed. R. Civ. P. 26(b)(2)(B). (Dowling-Mclntire Decl. ECF 369-1, at 7).
24
After engaging expert assistance, however, Plaintiffs eventually produced 5,527
Facebook records, including records from every Plaintiff with a Facebook account. (Decl. of
Jordan McCabe, ECF No. 389-1, at 3). These records were identified by search terms provided
by Defendants (Bertram Decl., Ex. C, ECF No. 285-1, at 9-11) and were produced directly to the
Defendants without preliminary review by Plaintiffs' counsel subject to the terms of an Agreed
Protective Order. (ECF No. 357). At present, the Plaintiffs have incurred the fees for retaining
expert assistance, retrieving, and producing the material.
The Defendants argue these records are "highly relevant" and demonstrate both the
necessity of their vigorous motions practice, and the likelihood that additional relevant records
have been lost or destroyed. (ECF No. 373, at 4). Plaintiffs concede the discoverability of the
material, but argue its relevance is minimal, and that it is largely, if not entirely, cumulative of
other evidence already produced.
After reviewing the Defendants' argument, including
approximately 200 separately numbered Facebook posts attached as exhibits to the sanctions
motion, the Court agrees with the Plaintiffs. While the 200 selected records demonstrate some
relevance, and thus confirm Plaintiffs' obligation to produce them in response to Defendants'
discovery requests, the posts almost uniformly support the Plaintiffs' claims. In this sense, while
discoverable, the vast majority of the Facebook records produced are cumulative of other
discovery in the case, and less probative than other evidence on the liability issues which are set
for resolution in April. In addition, while some small gaps in the Facebook production may
remain, the overwhelming consistency in the hundreds of records which were submitted to the
Court for review does not suggest any bad faith or the loss of evidence in the few materials
which may have been omitted.
Accordingly, as explained in greater detail below, the Court
12 In particular, the Defendants observe that both the Brandsemas and Sulligans testified to deleting some
material from their Facebook accounts. (ECF No. 392, at 7). The Plaintiffs responded that the changes to
25
does not find the production warrants sanction under Rule 37(b) or (c), nor do any small gaps in
production warrant relief for spoliation.
The Defendants' supplemental brief and accompanying exhibits attempt to show the
relevance of the Facebook production in three general areas. Defendants argue that the records
are relevant to show 1) the condition of the Plaintiffs' homes during the time of their tenancy, 2)
the deficiencies in Plaintiffs' production of other records, and 3) the Plaintiffs' motivation for
suit, or demonstrations of ill-will against Lincoln.
summarizing selected Facebook posts)).
See (ECF No. 373-2) (Defendants' chart
In each of these three areas, the Defendants have
overstated the importance of the Plaintiffs' individual use of social media to the liability issues to
be contested.
i.
Condition of the home.
Several Facebook posts have been identified by the Defendants as relevant because they
demonstrate the condition of the Plaintiffs' home during the time of their tenancy. Indeed, the
possibility of photographic or video evidence demonstrating the condition of any Plaintiffs
subject residence was a strong motivation to require complete production of the Facebook
records.
After reviewing the materials selected by the Defendants to support their motion,
however, the undersigned finds that the posts do little to shed light on relevant conditions in any
of the family homes.
Most of the posts identified in this category either relate specifically to a Plaintiffs
complaint of mold damage, e_g., (ECF No. 373-5, at 41, 44; ECF No. 373-6, at 8, 11) or depict
unaffected areas of the home as background for photos or descriptions of routine family life.
the accounts related to private marital communications unrelated to these claims. While the Court does
not condone the parties' deletion, the volume of material which was produced by both families, and the
manner in which it was reviewed and produced belies any suggestion that they intended to deprive
Lincoln of relevant evidence. See (ECF No. 369-1, summarizing Facebook production by party).
26
E.g., (ECF No. 373-5, at 199, 202, 205, 214). To the extent any of the photographs demonstrate
mold damage, they appear to be entirely cumulative of other photographs already produced or
already in Lincoln's possession. The other photos or descriptions of the residences do not
document any particular defect but mostly show family situations with the home as backdrop.
Thus, while these posts do depict "the condition of the home," they are not particularly germane
to the contested issues, which involve allegations of mold in carpet, HVAC equipment,
ductwork, behind walls and under flooring. E.g., Chan Complaint, fl| 17-25, case no. 2:12cv580,
(ECF No. 1, at 12-14) (alleging moisture and mold in the HVAC unit, HVAC closet and duct
work). As a result, photos showing an apparently undamaged ceiling are not particularly useful
to establish or refute a fact at issue. E.g., (ECF No. 373-2, at 2) (Ms. Chan posting "napkin
dipped in pop and thrown on my ceiling . . . this is what my kids do when I'm in the
bathroom.").13 Other posts merely describe activities in the house which appear to bear no
relation whatsoever to the allegations in any Complaint. E.g., (ECF No. 373-2, at 35) (Ms.
Sulligan posting "Anyone know how to fix a dryer? It would break once I FINALLY got it
upstairs. ©"); (ECF No. 373-2, at 27) (Ms. Harding posting "so apparently these Navy toilets
aren't as bad as I thought. [My daughter] just flushed her underwear down them and it didn't
even get backed up.").
Far more relevant than these innocuous depictions of family life are
pictures and descriptions of black mold in vents, (ECF No. 373-11, at 86), under floors, (ECF
No. 373-11, at 59), and behind walls, (ECF No. 373-6, at 8). These mold-related posts are
clearly relevant and discoverable, but they are also almost entirely cumulative of other discovery
(as the Plaintiffs all along maintained they would be). As a result, the already incurred cost of
13 Lincoln's attorneys suggested Ms. Chan's self-deprecating post regarding her children throwing popsoaked napkins on the ceiling was also relevant to support the Defendants' claim of contributory
negligence due to her poor housekeeping. This suggestion reveals a level of inexperience supervising
small children, as well as the minimal relevance of the records counsel selected to support the motion.
27
producing them must be considered under the proportionality mandate of Federal Rule
26(b)(2)(B) and (C).
ii.
Deficiencies in other discovery.
A number of the selected Facebook posts are identified by Defendants as demonstrating
deficiencies in the Plaintiffs' prior production. In some cases this is because a photo or image
was produced in the Facebook production which had not been produced in prior discovery. E.g.,
(Bertram Decl., Ex. 26, ECF No. 373-5, at 202; Bertram Decl., Ex. 37, ECF No. 373-6, at 20).
In most cases, however, the allegedly omitted image is completely irrelevant and was only
produced in the Facebook production due to the extremely broad nature of the search terms and
the Plaintiffs' agreement to disclose every record produced by the search.
For example, the image in Bertram Exhibit 26 was a post by Mr. Chan, described in the
Defendants' motion for sanctions as "a picture of his wife and daughter that appears to show
their home." This exhibit was identified by the Defendants among the 5,000 records produced to
them as demonstrating deficiencies in the Chans' prior production because they had not
previously produced the photograph. (ECF No. 373-2, at 9). Indeed, the picture does narrowly
depict the Chan's home as background, but it is captioned "My girls' new haircuts." It does not
depict any mold damage, but neither does it refute the Chans' claims. It is a photograph of Mr.
Chan's family and their faces fill the bulk of the image. In short, it is irrelevant, was needlessly
produced, and appeared in the production from the Facebook vendor only because it contained
the name of a consolidated Plaintiff, Heather Coleman who "liked" it. Several other posts
identified in this category are similarly irrelevant. E.g.. (Bertram Decl., Ex. 69, ECF No. 373-8,
at 84 (depicting the Chan children in their playroom); Bertram Decl., Ex. 197, ECF No. 373-11,
at 23 (depicting the Sulligans' kitchen).
28
Other posts are identified as demonstrating the deficiencies involved posts between
Plaintiffs which had been produced by only one. (ECF No. 373-2, at 31) (citing Bertram Decl.,
Ex. 183, ECF No. 373-10, at 158). As set out by Plaintiffs' forensic expert, there are a variety of
reasons why posts might appear in one place and not in another, including specifically where a
user comments on another's post. The comment is not recorded on the Facebook data of the
original commenter. (McCabe Decl., ECF No. 389-1, at 94-95).
Ultimately, however, whether any of these deficiencies are sanctionable must be assessed
through the four factors outlined in Anderson v. Found, for Advancement, Educ. And Emp't of
American Indians, 155 F.3d 500, 504 (4th Cir. 1998). The court must determine: (1) whether the
non-complying party acted in bad faith, (2) the amount of prejudice that noncompliance caused
the adversary, (3) the need for deterrence of the particular sort of non-compliance, and (4)
whether less drastic sanctions would have been effective. Id. (citing Wilson v. Volkswagen of
Am., Inc., 561 F.2d 494, 503-05 (4th Cir. 1977)). If Defendants came into possession of a
document or image they believe was discoverable, it certainly mitigates any prejudice that
Defendants may have suffered. Thus, even assuming that either of these scenarios presents a
deficient discovery production, the lack of prejudice steers the Court away from imposing
sanctions. Defendants have argued that such a deficiency should lead to the inference that more
undisclosed, relevant information remains outstanding, but the undersigned is not inclined to
draw that inference based on the course of discovery in this case. As set forth elsewhere, the
Defendants provided over 5,000 social media posts from 16 different accounts. That production
was obtained through a retained forensic consultant who produced records directly to the
requesting party. Moreover, the belatedness of any production was already mitigated after the
trial on liability was continued, and the Court extended the discovery cutoffs. Compare Original
29
Rule 16(b) Scheduling Order (ECF No. 209), wjth Minute Entry for Aug. 5, 2014 (ECF No.
315). Finally, the vast majority of posts in this category are irrelevant, and were produced solely
because they were selected in the protocol devised by the Defendants to obtain the broadest
possible response.
iii.
Motivation for suit or ill-will against Lincoln.
By far, the largest number of selected posts described in Defendants' motion are relevant
to the Defendants' contention that Plaintiffs' bear ill-will or animosity toward Lincoln as
evidenced by their public posts condemning the company and its response to their Complaint.
Were that issue in dispute, the treasure trove of electronic evidence obtained through Facebook
certainly answers the question definitively. But the Plaintiffs have not made a secret of their illwill towards Lincoln, which is amply documented in other evidence, videotapes, news reports,
email and correspondence. The identified Facebook posts, intended for a sympathetic audience,
merely amplify any particular Plaintiffs previously demonstrated unhappiness - sometimes
through the use of more colorful language - but shed little new light on this established fact.
Most importantly, they do not suggest that additional relevant evidence has been lost.
The foregoing analysis is not intended to minimize Defendants' contentions regarding the
relevance and discoverability of some of this material. However, in fashioning sanctions for
Plaintiffs' alleged noncompliance under the Rules, the Court must consider the nature of the
evidence in relation to other discovery. In that regard, it does not appear that the Plaintiffs'
failure to comply with the Court's Order has deprived Defendants of significant relevant
evidence. To the extent that Defendants have been deprived of any evidence, it was not as a
result of any Plaintiffs deliberate act. Indeed, it does not appear that any loss of relevant data
resulted from deletion, only from a possible failure to take affirmative steps to preserve data or
30
access to data. In fact, of the more than 5,000 Facebook records produced, and the more than
200 submitted to the Court in support of Defendants' argument, less than a handful contain
relevant, noncumulative evidence of whether a mold condition did or did not exist, or whether
Lincoln did or did not properly remediate after notice of such a claim. At most, these posts bear
on the related issue of whether other factors were involved. E.g., (ECF No. 373-2, at 34) (the
Sulligans posting about having to clean up cat urine); (ECF No. 373-2, at 12) (the Coleman's
posting about a plumbing problem); or whether property already damaged by mold could be
cleaned. E.g., (ECF 373-11, at 14) (the Hardings posting about personal property cleaned with a
mold decontaminate). But these relevant posts have now been produced, and in most cases were
available to the Defendants before depositions.
While the Defendants' rightly fault Plaintiffs' for their admittedly lackluster initial
production, the Court does not find their efforts demonstrate bad faith, or even any lesser
standard of culpability necessary to impose sanctions. Indeed, if any data was lost as a result of
the delay, the loss was minimal, and likely incidental to automatic deletion or some other
unrelated change in the parties' use of media. It does not follow that any person intentionally, or
even negligently failed to preserve evidence they knew to be relevant. Instead, where electronic
data is concerned, "the more logical inference is that the party was disorganized, or distracted, or
technically challenged, or over-extended," or all of these.
In re Ethicon, Inc. Pelvic Repair
Systems Prod. Liab. Litis.. 299 F.R.D. 502, 518 (S.D. W.Va. 2014).
D.
Proportionality requirements of Rule 26(b)(2)(C) require the Court to
consider costs to the Plaintiff in evaluating any sanction under Rule 37(b) or (c).
In their several briefs since the Facebook production, the Defendants have highlighted a
post made by Ms. Federico on the date contractors opened the wall of her Lincoln-managed
31
apartment on October 13, 2011.
When workers discovered black mold on the back of the
drywall, Ms. Federico posted a picture of the mold on Facebook, commenting "black mold in the
walls! Gotta love base housing." (ECF No. 373-2, at 16). Later in the same post, Ms. Federico
responded to a friend's inquiry on her timeline for repairs by posting "urn, yeah, about that . . .
Duces [sic]14 I'm moving out!").
Defendants argue this post undermines Ms. Federico's
complaint in which she alleged that when her wall was opened up she became ill with severe
headaches, dizziness, and "projectile vomiting." _L (citing Federico Complaint).
The Plaintiffs see no inconsistency. They point out that the photographs in the post had
previously been produced. With regard to Ms. Federico's comments, they argue that her
Complaint did not disclose the exact timeline of her illness and that interrogatory answers later
clarified the timing in a way not inconsistent with her posts. (Federico Interrog. Resp., ECF No.
389-1, at 14).
In response to this contention, Defendants cite several other references from
discovery during which Ms. Federico variously describes the timing of her illness. (ECF No.
392, at 13, (citing both Ms. Federico's medical records and previous statement to WTKR
reporter Lori Simmons)).
The foregoing exchange, which the parties even more elaborately briefed, illustrates the
difficulty the Court will inevitably face in trying to achieve the proportionality required by Rule
26(b)(2)(C) in electronic discovery of social media. The Defendants correctly note that this post
is potentially relevant to Ms. Federico's credibility. To the extent she made prior statements
suggesting she was "immediately" incapacitated or being exposed to the mold, her ability to post
what defense counsel describes as "sassy" descriptions of the circumstances may undermine her
credibility.
But having already produced the photographs and other documents related to the
14 Defendants' brief relies upon the internet's Urban Dictionary for the meaning of "duces" which they
contend means: "saying bye" originates from putting up two fingers "I'm bout to hit it duces." (ECF No.
373-2, at 17, citing www.urbandictionary.com\defme.php?term=duces).
32
work being performed, it is difficult for the Plaintiff or her attorney to understand in advance
how describing these already disclosed facts in a Facebook post might have independent
significance. This is especially so where, as here, the parties do not agree on the existence of any
previous inconsistency in her description.
This potential problem can be mitigated when a thorough self-directed search allows the
Court to evaluate some documents for relevance before ordering a forensic exam. But when, as
in this case, significant costs have already been incurred in producing this material, the allocation
of those costs under Rule 37 is the only tool left for the Court to try and ensure proportionality.
Thus, in evaluating whether to award sanctions under Rule 37(b) or (c) even if the Court were to
determine that the Plaintiffs had acted culpably, by failing to produce social media in a timely
fashion, the cumulative nature of the material and its subsequent production has significantly
limited, if not eliminated, any prejudice to the Defendants.
See Belk, 269 F.3d at 348.
Moreover, the expense Plaintiffs already incurred must be evaluated in light of the
proportionality limits of Rule 26(b)(2)(C), and Rule 37(e)'s caveat precluding sanctions for
electronic information lost due to good faith operation of the electronic information system.
Having considered all of this, the Court finds that the $29,000 Plaintiffs already incurred to
generate the additional material is a sufficient sanction to deter further non-compliance. In
combination with the extended discovery deadlines permitting depositions after the material was
produced this is a sufficient remedy for any non-compliance with the Court's prior Orders related
to production of electronic media.
E.
The circumstances of the parties' discovery dispute require an award of costs
or attorney's fees associated with the Defendants' Motion to Compel under Rule 37(a).
The Plaintiffs have incurred, and by this Order will bear, the expense of the forensic
33
examination and production of their electronic media totaling over $29,000.
The foregoing
pages explain the Court's decision not award any further sanction as a result of Plaintiffs' largely
complete, but admittedly dilatory discovery response. However, even in cases where the non-
complying party does not act in bad faith, Rule 37(a) mandates an award of attorney's fees and
costs associated with a motion to compel where discoverable material is produced after the
motion, and the non-producing parties conduct was not substantially justified, unless other
circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A). Here, there is no
dispute that a large amount of discoverable material was produced after the Defendants filed the
motion. Prior to filing, the Defendants certified, and the Court finds, that they attempted to
resolve Plaintiffs' non-compliance and were unsuccessful.
Although the Court has found that Defendants failed to establish the level of culpable
conduct or prejudice necessary to impose additional sanctions, the Plaintiffs cannot claim that
their initial, almost non-existent, production of electronic media was substantially justified. The
volume of records produced in their multiple supplements clearly establish both their ability to
retrieve responsive documents, and their discoverability. In addition, while the Plaintiffs are
individuals and unsophisticated in the burdens of litigation, their counsel are not. Eight lawyers
from four different law firms have been engaged on the Plaintiffs' team. They have filed
lengthy, detailed complaints seeking millions of dollars in damages. Several of the cases had
been pending for months awaiting resolution of jurisdictional motions before discovery
commenced and thus counsel should have been prepared to respond to a comprehensive set of
discovery requests. Their inadequate initial response was not substantially justified.
It remains, however, for the Court to determine whether other circumstances would
render an award of fees incurred in preparing and litigating the motion unjust. As set forth
34
elsewhere, the Defendants have never requested a specific monetary sanction. At the Court's
request, however, counsel submitted an itemized statement of fees associated with their motions
to compel electronic production. (ECF No. 371-1, at 7-12). This statement includes an itemized
list of fees incurred between June 20 and August 20, 2014. As modified to reflect the issues
addressed by this motion only, those fees total $64,514.00. k_ at 12. Given that this statement
concluded before the Defendants' voluminous Facebook production, it significantly under-
reports the hours spent by counsel evaluating the Plaintiffs' compliance, and certainly
understates the costs spent litigating the sanctions motion itself. Nevertheless, after considering
the entire scope of the discovery disputes initiated by both sides, the Court finds imposing a fee
award of this size would be unjust under the circumstances of this case.
Fed. R. Civ. P.
37(a)(5)(A)(iii).
Several factors suggest an award of fees would be unjust. To begin with, the Plaintiffs
have already been put to significant expense defending the sanctions motion, which as set forth
above, they have largely won. Second, Plaintiffs incurred over $29,000 in fees to a forensic
expert in order to produce the electronically stored information from their various Facebook
accounts. While discoverable, this information is only marginally relevant to the liability issues
which will be contested. It is largely cumulative, and under the proportionality limits set forth in
Rule 26(b)(2)(C), the cost of producing it outweighs the likely benefit of the information
produced considering the needs of the case, the Plaintiffs' resources, and the importance of the
discovery in resolving the issues before the Court. Indeed, although they undertook the expense
of a forensic expert voluntarily, in an effort to avoid sanctions, the Court had twice suggested
that the expert fees might be the measure of relief on any sanction for continued noncompliance.
(Transcript of July 10, ECF No. 286, at 15, 60-61). The fact that this expense has already been
35
incurred, and will remain with the Plaintiffs under the terms of this Order, is a significant factor
affecting the award of other costs associated with this discovery dispute.
Finally, the
Defendants' discovery practice contributed to the Plaintiffs' failure to meet the deadlines
imposed by the Court's initial Scheduling Order. For example, each Plaintiff received two sets
of Requests for Production. Counting subparts, these requests each include over 200 separately
identified requests for production and five pages of definitions and instructions. E.g., Defs'
Request for Production to Rachel Delorey, (ECF Nos. 229-1, 229-2). At an earlier hearing on
Plaintiffs' request for a Protective Order regarding these requests, Defense Counsel defended the
discovery as standard practice in that she routinely asks for documents "supporting or in any way
relating to" the various allegations in each individual complaint. The length of the requests was
thus made necessary by the Plaintiffs' equally verbose Complaints. While this may be a
permissible means of requesting documents, it does not explain the numerous requests seeking
duplicative, if not identical material.
Despite these factors suggesting fees would be unjust, the Court has also considered two
other discovery disputes that inform the parties' positions. The previously resolved disputes
related to video taken by a communications firm hired to create an advertising website (Cabin
Fever Motion, ECF No. 294) and representations made about a mold cleaning company and its
owner, who was originally identified as a Plaintiffs expert. (Expert Production Motion, ECF
No. 301). In both of these cases, the Defendants have identified representations by Plaintiffs'
counsel concerning the accuracy and completeness of discovery, which later proved incorrect.
In the case of Cabin Fever, counsel's representations concerned production of videotaped
testimonials by two of the Plaintiffs for use in the advertising website. Only the finished videos
were produced, and descriptions by counsel concerning the deleted outtakes were later
36
contradicted by the contractor during his deposition. In addition, multiple attorneys represented
to the Court that the initial website had been taken down as a result of "overwhelming" response
by other families affected by military mold. This representation later proved to be incorrect as
the contractor testified that the website had only been disclosed to counsel for purposes of preapproval.
In the case of the contested expert, counsel's representations were more substantive and
relevant as they related to evidence of property damage in two Plaintiffs' homes. Throughout the
early expert production, Plaintiffs had maintained that a particular company, PuroClean and its
owner, Tony Ortiz, had refused to clean personal property damaged by mold because of the
extent of contamination. While this representation was supported by a letter Ortiz sent to
counsel in 2011, a later production established that Ortiz had cooperated with another vendor,
Wondermakers, in a comprehensive cleaning of some of the same property. These materials
were eventually produced by Mr. Ortiz and the Plaintiffs' counsel claimed not to be aware of the
later development. However, as the production obtained through Defendants' original motion
established, several of these emails were copied to counsel. Based partly on Ortiz's inconsistent
positions, Plaintiffs elected to withdraw him as an expert witness.
Although these two disputes were extensively briefed, they remain tangential to the
primary issues before the Court on this motion. However, in earlier resolving the related
motions the Court held under advisement the Defendants' request for fees in connection with
certain statements by counsel regarding the sufficiency of that production. To the extent their
earlier resolution bears on the Court's Order for relief in any fashion, however, they would not
increase the likelihood of case-dispositive sanctions. Primarily this is because these two disputes
relate to errors by counsel and not the Plaintiffs themselves. In both cases, the primary attorneys
37
involved submitted detailed declarations explaining the miscommunication which led to their
earlier incorrect statements. (Holt Decl., ECF No. 389-4; Baily Decl. ECF No. 389-3). After
reviewing the declarations and having presided over all of the affected discovery proceedings,
the undersigned accepts each statement that counsel did not deliberately misrepresent the status
of production, but relied on information then provided to them by the non-parties which later
proved inaccurate.
While the erroneous information would likely have been discovered by a
more comprehensive consultation with the non-parties regarding discovery, the Court does not
find any counsel to have intentionally misrepresented the relevant circumstances.15
Nevertheless, both matters suggest the Defendants' extensive motions practice revealed several
problems in counsels' response to discovery and. at least in the case of Mr. Ortiz, substantial
contrary evidence.
After considering all the foregoing, the undersigned does not find that an award of all of
the fees associated with the motion to compel would be just. See Adams v. Sharfstein, 2012 WL
2992172, at *5 (D. Md. July 19, 2012), (declining to award fees due to plaintiffs limited
resources); EEOC v. Dolgen Corp.. LLC. 2011 WL 1260241, at *17 (M.D. N.C Mar. 31, 2011)
(awarding half of incurred attorney's fees where disagreement about the nature of discovery
justified some opposition briefing). But some award of fees is necessary to fulfill the mandate of
Rule 37(a) and to discourage the original non-compliance that gave rise to Defendants' original
motion to compel. (ECF No. 263). Accordingly, Defendants are DIRECTED to submit by
January 14, 2015 affidavits or other support for the reasonableness of the $64,515 fees incurred
both as to rate and number of hours. The Defendants may also include a brief of no more than
15 Neither of the declarations explain why several attorneys suggested that the Cabin Fever website was
taken down due to a "flood" of responses, when in fact it had never been made public. In light of the
number of cases and lawyers involved, the Court will presume these erroneous statements were merely
puffery which, in any event, did not go directly to the discovery issues being addressed.
38
five pages setting forth their request for an appropriate fee in light of the foregoing analysis. The
Plaintiffs may submit opposing affidavits or declarations and their own five page brief on or
before January 28, 2015. No further briefing and no exhibits unrelated to the reasonableness of
fees will be permitted as the Court will rule on the issue of fees due under Rule 37(a) within 10
days of receiving the briefs.
IV.
CONCLUSION
Accordingly, for the foregoing reasons the Defendants' motion for sanctions is
GRANTED IN PART and DENIED IN PART.
The Plaintiffs shall bear the cost of expert
production of electronic media in the amount of $29,220.04. (ECF No. 372-1, at 3). The court
shall also award a portion of the fees incurred by the Defendants in bringing the Motion to
Compel after evaluating the facts required by Rule 37(a)(5)(A).
To the extent Defendants'
motion sought other or further relief, it is DENIED.
Douglas E. Millir^^x
United States Magistrate Judcje
DOUGLAS E. MILLER
UNITED STATES MAGISTRATE JUDGE
Norfolk, Virginia
December 31, 2014
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