Williams v. City of Franklin, 2009 U.S. Dist. LEXIS 33200 (M.D. Tenn. Apr. 16, 2009) is an ESI free for all. The case is a local political drama that sounds like a Hollywood production. There are threatening text messages from an alderman and then rummaging through an employee’s laptops for pornographic images. There is Internet usage history and one key email message.
Short Factual Overview
The basic facts and evidence included the following:
An Alderman was subject to an ouster suit;
The Alderman anonymously sent threatening text messages to the Plaintiff;
The Alderman, after resigning but before the resignation is effective, sent an email alleging wrongdoing by the Plaintiff on his work computer who had an “insignificant role” in the ouster;
The Plaintiff was subject to disciplinary hearings over usage of two city laptops, resulting in an employment suit against the City. Williams, 1-5.
The Anonymous Text Messages
These “threat messages” included the following:
“time almost up. hear u got money now. I b in touch tues or wed 4 u 2 give me mine. who alderman I get 2 fire u next?;”
“I turn u into today u get fired;”
“u been turned in. . . . u aint gone find work noplace then,” and
“u b fired.” Williams, 5.
ESI Litigation
The Plaintiff sued the City claiming he was terminated in retaliation of the ouster suit and was deprived of his due process rights. Issues such as form of production or defensible collection are not discussed in any detail. The opinion grants in part and denies in part the Defendant’s summary judgment motion. However, that is not the key reason the case is noteworthy: The volume and forms of ESI that form the subject of the lawsuit is a strong indication of what electronically stored information we can see in litigation. Lawyers handling civil and criminal cases need to be aware that this ESI can be the basis of a case.
The “connectivity” of the average person can include a work computer, a personal laptop, cell phones (personal and/or business), social networking activity and “classic” ESI such as email. What ESI is relevant to a lawsuit will entail analyzing the facts of a case, consulting with the client and possibly an expert.
For example, Williams has no discussion of how text messages were collected. This is not a lawsuit with data to revival Enron or Verizon litigation, but dozens of text messages, email and arguably imaging two hard drives.
Here are possible ways text messages can be collected in a “small” lawsuit:
Option 1: Computer expert uses product like Paraben for collecting text messages.
Option 2: Request to cell phone provider for text message history.
Option 3: Text messages possibly backed up on computer after being synced with phone or PDA.
Option 4: Photos taken of phone with text messages showing (LOW tech, but was done in Dickens v. State, 175 Md.App. 231 (Md.App.,2007).)
This is not an exhaustive list. However, it does illustrate considerations for collecting text messages.
Collecting electronic evidence such as text messages, Internet usage history, harvesting emails and imaging a hard drive are all possible issues to consider in litigation. The more technology we use in daily life only increases the sources of ESI that can form a lawsuit. The wild ride of Williams v. City of Franklin is a prime exhibit of this phenomenon.