Alternative Title: Thank God Dropbox Does Not Need to Provide a PMK Witness Every Time Somebody is Sued
Dropbox was subpoenaed as a non-party to provide a deposition witness to testify about its business, practices, and technology, in a Texas lawsuit. All of this information is publicly available on Dropbox’s website. The Court [rightly] quashed the subpoena. Intermarine, LLC v. Spliethoff Bevrachtingskantoor, B.V., 2015 U.S. Dist. LEXIS 112689, *5-6 (N.D. Cal. Aug. 20, 2015).
There are over 400 million Dropbox users who save over 1.2 billion files to Dropbox every 24 hours. Intermarine, at *6. It would be highly chaotic and costly if Dropbox had to have witnesses be deposed every time a Dropbox user was in litigation.
Dropbox argued that the deposition subpoena required them to testify about information that is available on their website, thus a witness was not required. Id. Moreover, a declaration could explain the nature and format of the data in Dropbox’s third-party production that would comply with the Federal Rules of Evidence for admissibility. Id.
The demanding party did not agree, arguing that four activity logs were created by Dropbox when the adverse party uploaded files, thus Dropbox needed to produce a witness to explain those logs. Id.
The Court did not agree with the demanding party and granted Dropbox’s motion. Intermarine, at *7. The Court explained the records were admissible as business records under Federal Rule of Evidence Rule 902(11). Id. The purpose of the business records rule “was intended to obviate the need for live witnesses to parade to the stand to support the admission into evidence of business records.” Intermarine, at *7, citing United Asset Coverage, Inc. v. Avaya Inc., 409 F. Supp. 2d 1008, 1052 (N.D. Ill. 2006).
The Court explained:
Dropbox attests the records were kept in the course of regularly conducted activity by Dropbox and were made in the course of regularly conducted activity as a regular practice by Dropbox. See Tyler Decl., Ex. I; see also Fed. R. Evid. 803(6). The Federal Rules of Evidence were designed to promote accuracy in factfinding and exclude documents that might be false or otherwise unreliable. As Dropbox provided the required authentication, Intermarine’s request for further testimony is duplicative and unnecessarily burdensome. Although Intermarine argues Defendants may dispute the authenticity of the records at trial, they are admissible with or without Defendants’ cooperation.
Intermarine, at *7-8, internal citations omitted.
As for the issue of the public information on Dropbox’s website on how files are stored and maintained, the Court stated, “Intermarine is not entitled to elicit expert testimony from Dropbox, particularly where it can retain its own expert witness to explain these issues.” Intermarine, at *9.
The Court concluded the opinion with the public policy that Courts are to protect non-parties with discovery in litigation. Id. The Court explained that Dropbox had complied with the Federal Rules of Evidence and no further testimony was needed. Intermarine, at *9-10.
Bow Tie Thoughts
It would be insane if Dropbox, Box.net, or any other file sharing service had to produce PMK witnesses every time one of their users was producing discovery. If that were the rule, those companies would need to embed lawyers and witnesses at every courthouse in the country. It would be easier figure out how to “file share experts” to in every lawsuit. It would be like requiring expert witnesses to explain how paper is made in every lawsuit [best read in a Neil deGrasse Tyson voice]: “First, a lumberjack cuts down a tree, and mighty oxen drag the trunk down to the river, which is then floated down river to the mil, and then…”
Forensic companies have developed collection tools to capture files and data uploaded to Dropbox and Box.net. Having a party’s expert perform the collection and declaration explaining the process would likely be far more efficient then seeking third party discovery for the cloud service providers. Moreover, this expert could testify if needed without the added challenges of subpoenaing a non-party to the lawsuit.
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.