Not every case involves Tweets from the President of the United States, but it is highly illustrative of how a party’s statements online can impact a case.
Parties must disclose individuals likely to have discoverable information, documents, and electronically stored information that support their claims or defenses within their possession, custody, or control. Karnoski v. Trump, No. 2018 U.S. Dist. LEXIS 43011, at *6 (W.D. Wash. Mar. 14, 2018), citing Fed. R. Civ. P. 26(a)(1)(A)(i)-(ii).
In the litigation involving the new ban on transgender individuals from serving in the military, US District Court Judge Marsha Pechman took issue Government identifying no one in their initial disclosures. The Defendants specifically stated:
The Department of Defense is currently undertaking a study of policies concerning transgender service members and upon completion of that study, and the development of any new policies resulting from that study, Defendants will supplement these disclosures as appropriate consistent with Federal Rule of Civil Procedure 26(e).
Karnoski, at *7.
No information concerning the Defendants’ claims or defenses was provided in the original initial disclosures or the amended initial disclosures. Id.
The Court found the Defendants’ position was problematic, because at issue was not a future government policy, but a current one. The Court quoted the President’s July 26, 2018 Tweet that stated, “…[a]fter consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow . . . Transgender individuals to serve in any capacity in the U.S. Military.” Karnoski, at *8.
Judge Pechman stated the Government could not claim there were no individuals or discoverable information on the current policy, when the President Tweeted that the decision was made after “consulting” with generals and military experts. Moreover, the Secretary of Defense had consulted with Service Chiefs and Secretaries on transgender individuals serving in the military. This raised the question, which generals and military experts were consulted? Who did the Secretary of Defense seek counsel from? What information was used to develop the President’s policy? How could the Government say with a straight face there was nothing? Karnoski, at *8-9.
The Court held that the Defendants failed meet their Rule 26(a) initial disclosure requirement. The Government was ordered to produce the disclosures within five days of the order that included all information to support their claims and defenses under the current policy prohibiting openly transgender persons from military service. Karnoski, at *9.
Bow Tie Thoughts
Most initial disclosure cases do not involve Presidential Tweets. However, this is a good example of how public statements on social media, whether by a single individual or company representative, can come back to haunt attorneys. If there is a major announcement, such as a product recall, the possibility of there being no discoverable information or persons with knowledge is laughable.
Attorneys who are preparing their mandatory initial disclosures could use information management solutions to find discoverable information. Basic search terms within specific date ranges are one option to begin identifying persons and data. This can result in more sophisticated strategies to find information that supports a party’s claims or defenses. However, it is best to start in a position with individuals and information in Rule 26(a) initial disclosures that can later be supplemented under 26(e), opposed to identifying nothing.