DOUGLAS E. MILLER, Magistrate Judge.
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.
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,
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).
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.
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.
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:
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.
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:
(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 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).
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:
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-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.
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.
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.
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.
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).
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).
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 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.
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."
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, good-faith 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.
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
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.
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.
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:
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.
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);
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.
First, Defendants express particular concern about an email account titled militarymoldwarriors@gmail.com. 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 ¶ 4 (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 % 3 (ECF No. 373-5, at 6).
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 ¶ 4 (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. Decl. of Christopher Racich ¶ 5 (ECF No. 392-4, at 2). 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.
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 ¶¶ 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."
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 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 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,
With regard to Mr. Sulligan's account titled jrsywild@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 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);
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.
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.
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.
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.
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.
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,
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.
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).
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
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 ill-will 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 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,
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 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 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]
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 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.
The Plaintiffs have incurred, and by this Order will bear, the expense of the forensic 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 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.
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 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.
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 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 pre-approval.
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 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.
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.
Accordingly, for the foregoing reasons the Defendants' motion for sanctions is GRANTED IN PART and DENIED IN PART. The Plaintiffs shall bear the cost