When thinking about sanctions for mistakes or malfeasance in the discovery process, you wouldn’t be alone if you assume we are talking about the big company defendant and not the allegedly wronged plaintiff. In this case, you’d be wrong.
We would like to present the case of Fast v. GoDaddy.com, LLC (D. Ariz. Feb. 2, 2022). Mostly because it is counterintuitive to the conventional wisdom that the “duty to preserve” and “spoliation” are only concerns for the defendants or the big company in most cases.
If you work for a defense firm, are you advising your attorneys to demand the plaintiff’s cell phone and/or email and social media for specific time periods or topics that might impact your case?
If you work for a plaintiff’s practice, are you advising your clients to preserve and turn over social media and other data during the discovery process?
In the Fast v. GoDaddy.com case, the plaintiff sued GoDaddy after having her position eliminated. The plaintiff alleges discrimination because the company improperly eliminated her position while keeping males (who were less qualified) to handle similar work. The plaintiff, while still employed, began working with a colleague, named Lee Mudro, to marshal evidence supporting the plaintiff’s claims against GoDaddy.
A duty to preserve was attached in May of 2018. After May of 2018, the plaintiff exchanged hundreds of relevant messages with Mudro on Facebook Messenger and Telegram (another messaging/social media application) regarding the plaintiff’s strategy for pursuing litigation against GoDaddy. Because the plaintiff’s attorney didn’t disclose to the plaintiff her duty to preserve, the plaintiff apparently didn’t disclose the existence of those messages to her lawyer, nor were they produced in response to GoDaddy’s discovery requests.
To make matters worse, it wasn’t until 2021 that the plaintiff produced some Facebook Messenger data involving Mudro, data she had previously withheld. This is over 3 years into the litigation.
Rather than producing all relevant data and messages, the plaintiff chose to “unsend” 109 Facebook Messenger messages that she previously sent to Mudro. That action effectively prevented Mudro from producing the unaltered messages in response to a GoDaddy subpoena as well.
Nonetheless, Mudro produced 109 time stamps depicting the dates when she received the 109 “unsent” messages from the plaintiff. The content of these messages was now no longer available to Mudro. In place of actual relevant text was the phrase, “this message has been unsent”.
After GoDaddy filed a motion to compel, the plaintiff produced 108 of the 109 unsent Facebook Messenger messages in their original and unaltered format. This created one, notable, exception. The plaintiff had permanently deleted a message memorializing an analysis she conducted with Mudro in which she discussed the strength of evidence supporting her claims.
Additionally, the plaintiff had used Telegram. Judge David Campbell noted, “A hallmark of Telegram is that a user can delete sent and received messages for both parties” and held that these details add up to meet the standards for sanctions under Rule 37 (e)(2)’s intent to deprive requirement. Additionally, Judge Campbell found grounds for sanctions under Rule 37 (e)(1) because of the 108 unsent messages and the 1 permanently deleted Facebook Messenger message.
In his ruling, Judge Campbell also noted that the Plaintiff and Mudro, “regularly switched between messaging platforms, including text, email, phone, Slack and Facebook, rather than using one platform exclusively.”
Whether you work with the requesting or the producing party, let this ruling serve as a head’s up to you. In today’s interconnected society, there are dozens of easy options for communication methods. Gone are the days where the only options to communicate are talk on the phone, face-to-face or in writing.
Certifying a complete discovery has never been harder and explaining that social media and text messages are just as discoverable as emails is a conversation that needs to take place with clients.
The courts are no longer forgiving these incidents as mistakes. They have placed an emphasis on the exchange of electronically stored information for close to two decades. It would be wise for those of us in the litigation arena to pay attention.
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