US Senior District Judge John Kane took on multiple discovery disputes against a Plaintiff in a wage an hour case. It is an amazing case study of what could be requested in a case.
Requesting Communications Off the Girlfriend’s Computer
The Plaintiff objected to information from the Plaintiff’s girlfriend’s computer being searched because the information was irrelevant.
The girlfriend had assisted the Plaintiff in finding an attorney after he “…told her to look for a lawyer for me and she looked it up.” Lozoya v. All Phase Landscape Constr., Inc., 2014 U.S. Dist. LEXIS 7135, at *5. (D. Colo. Jan. 21, 2014).
The Court disagreed the information was irrelevant, stating:
Despite the seemingly narrow role Ms. Isla and her computer played in this matter, the Isla ESI is nonetheless relevant because the Isla ESI, at minimum, will allow Defendants to get a timeline of when Mr. Lozoya began searching for counsel. Further, the search terms Ms. Isla used may prove helpful. For example, evidence revealing that Ms. Isla hunted for counsel using the phrase “attorneys specializing in workers with no lunch breaks,” would boost the theory of Plaintiffs’ case, while evidence showing that Ms. Isla hunted for counsel using the phrase “reasons to sue employer” might be less probative. While the ultimate relevance of the Isla ESI remains to be seen, there is a logical chain of inferences to support my finding that the data sought appears reasonably calculated to lead to admissible evidence. Accordingly, Plaintiffs must produce the Isla ESI.
Lozoya, at *6.
It Ain’t Broke Until a Computer Forensics Expert Says So
The Plaintiffs argued two other computers subject to the discovery requests were broken. One computer had a shattered screen and the other incapable of holding a charge. Additionally, neither was backed-up when they failed. Id.
The Court found that the information on the computers would not be found unavailable until a computer forensic expert examined the machines. As such, the Plaintiffs had to produce the ESI unless they could “cite to legal authority or point to factual support for their contention that it is impossible to extract data from the damaged computers.” Lozoya, at *7.
Phone ESI is More Than Call Records
The Plaintiffs also challenged producing communications from cell phones on the grounds the Defendants had the communications between the parties.
Cell phone discovery is far more than the call records between the parties. There potentially are text messages, photos, voice memos and other information available on a cell phone.
The Court stated that the Defendants requested relevant communications with any person, not just the Plaintiff’s supervisors. The Court ordered the Plaintiffs did not have to produce phone ESI that was duplicative of ESI the Defendants already possessed, but “[f]or all other phone ESI in Plaintiffs’ possession relating to alleged wage and hour violations, however, Plaintiffs must pony up, excepting attorney/client privileged communications.” Lozoya, at *8.
Bow Tie Thoughts
It is not often a judge literally says, “pony up,” but it happened here.
Discovery is messy. I wager most cases are like this one, with parties fighting over single computers and phones. Requesting ESI from archiving systems and enterprise content management systems is the likely goal of service providers, but state court cases and single plaintiffs will see ESI from multiple sources that cause a computer forensic expert some frustration with potentially unusual situations.
It is noteworthy the ESI sought from the girlfriend were her “Google” searches for a lawyer. I have not seen that before in a case, even though I am sure this was not the first time it happened.
It should be noted that discovery requests for specific communications do not mean the requesting party gets full access to phones or other computers. The ESI must be relevant. As such, attorneys need to understand what tools can be used to acquire relevant data, which will require the help of a service provider in finding responsive discovery.
Finally, a lawyer cannot declare a computer is broken beyond repair. That very well may be the case, but a Court almost always requires at least an expert affidavit explaining why ESI is not reasonably accessible after examination by an eDiscovery expert.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.