E-Discovery Law Review : Electronic Discovery Lawyers & Attorneys : Cozen O'Connor Law Firm : Data Preservation & E-Discovery Disputes

Although deleted data can be recovered – perhaps at significant cost – destroyed data is likely gone forever. Perhaps it is for this reason that a recent federal court was reluctant to apply a strict proportionality test to a preservation dispute.

In Pippins v. KPMG LLP, 2011 U.S. Dist. LEXIS 116427 (S.D.N.Y. Oct 7, 2011), the court denied the defendant’s request for a protective order to limit its preservation obligations. A group of plaintiff sued their former employer alleging that the employer deprived them of overtime pay by purposefully misclassifying them as exempt employees under federal and state employment laws. These plaintiffs moved for class certification, causing the court to stay discovery until it ruled on the certification question. This stay necessitated that the employer indefinitely preserve the hard drives of over 7,500 potential class members.

After racking up over $1,500,000 in preservation costs, the employer sought a protective order, arguing that the burden of preserving the hard drives was disproportionate to the benefit they might provide and that there were less burdensome methods of preserving any relevant information on the hard drives. While cautioning against the application of a proportionality test in preservation disputes, the court assessed three factors in evaluating the employer’s duty to preserve the drives.

First, the court looked to see if the material was relevant. The former employees believed that the drives contained information relevant to the dispute, such as job responsibilities and hours worked. The employer, on the other hand, argued that similar information was contained in sources such as human resources files and time records. It was not entirely clear exactly what information was on the drives, however, because the employer had not allowed anyone to inspect them. This uncertainty, along with the extremely broad concept of relevance, led the court to conclude that the employer could not establish that the material was not relevant.

Second, the court looked to see if the material on the hard drives was created by or for “key players,” namely, people likely to have relevant information. The employer argued that only the named plaintiffs were key players because they purported to represent the entire class. The court disagreed. It reasoned that not only was every former employee a potential plaintiff in the class action, but also that the employer was on notice that the hard drives could contain material relevant to future litigation even if the class was not certified and, thus, had a duty to preserve the hard drives in either situation.

Finally, the court considered whether the continuing preservation merely maintained information that was available from other, less burdensome, sources. The employer argued that the information was duplicative because it also was contained in a variety of other sources, and because the former employees could testify to their job responsibilities. Nevertheless, the court found that the unofficial information on the hard drives could supplement the official information in the employer’s records. As a result, the information on the hard drives was deemed to be not duplicative.

On balance, the court ruled that the employer had to continue to preserve the hard drives. In the end, there were too many unknowns, such as, the ultimate length and cost of preservation, the relevance of the information on the hard drives, and the outcome of the motion for class certification, for the court to weigh the benefits and burdens in a satisfactory manner. The finality of the destruction that would have accompanied the protective order likely led the court to err on the side of preservation.

Note that the duty to preserve potentially relevant information is much broader, and arises much earlier, than the duty to produce information that is relevant and responsive to discovery requests in pending litigation. The Pippins decision speaks only to the preservation phase of electronic discovery and does not address the scenario where additional potentially relevant information continues to be created and stored on various hard drives after initial preservation efforts are complete (or, stated another way, the issue of the ongoing creation and preservation of electronic data). Businesses may be able to avoid these costs and potential pitfalls by encouraging, if not requiring, employees to save data, not on their individual hard drives, but in a central location that is backed-up on a daily basis. In an ideal scenario, any potentially relevant information would be stored on a back-up and shared server and, at most, duplicate that which is contained on individual hard drives. This may eliminate, or provide strong arguments in favor of eliminating, the need to, and cost of, preserving multiple hard drives multiple times.

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 In today’s electronic age where text messages, instant messages and e-mails have, to a large degree, supplanted traditional written correspondence, courts are increasingly called upon to apply longstanding evidentiary rules to society’s newer methods of communication. A recent opinion, however, from the Pennsylvania Superior Court, Commonwealth v. Koch, No.1669-MDA-2010, 2011 Pa. Super. LEXIS 2716 (Sept. 16, 2011), suggests that the more things change, the more they stay the same.

According to Koch, a party seeking to admit a text message as evidence at trial faces authentication requirements similar to those of a party seeking to admit a handwritten letter. A letter, for example, may bear Mr. Smith’s signature, or be printed on Mr. Smith’s stationery, but that signature may be forged, or the letterhead copied. Typically, some further authentication is needed to show that the letter is what it purports to be – i.e., a statement made by Mr. Smith. Under Koch, the same principle applies to text messages: the mere fact that a text message came from Mr. Smith’s cell phone number is an insufficient basis to admit that text message as a statement made by Mr. Smith. Additional evidence of the sender’s identity is needed.

In Koch, the trial court admitted testimony and a transcript of thirteen drug-related text messages obtained from a cell phone that the defendant admitted belonged to her. The defendant objected, claiming there was no evidence substantiating that she was the author of the text messages, nor was there evidence that the drug-related texts were directed at her, because Commonwealth witnesses testified that another person was using the defendant’s cell phone at least some of the time. At trial, a police detective further conceded that: the author of the drug-related text messages could not be ascertained; that some of the messages referred to the defendant in the third person and, thus, were not written by the defendant; and that some text messages had been deleted. The defendant was ultimately convicted on two drug-possession charges.

The Pennsylvania Superior Court reversed, holding that the trial court erred in admitting the text messages because the messages were improperly authenticated. In determining the standard for the authentication of text messages, the Superior Court looked to several recent appellate opinions from around the country, as well as its own opinion in In the Interest of F.P., a Minor, 878 A.2d 91 (2005), a case that addressed authentication of instant messages.   From these cases, the court concluded that “e-mails and text messages are documents and subject to the same requirements for authenticity as non-electronic documents generally.”

Establishing authorship of an e-mail or text message, the court observed, can be difficult because e-mail accounts and cell phones are not always exclusively used by the person to whom the e-mail account or cell phone belongs. In the light of this, the court held that “authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.”

Turning to the facts of the case, the court found that evidence showing that the defendant had written the text messages found on her phone was “[g]laringly absent.” The court noted that there was no confirming testimony from the senders or recipients of the disputed messages and no contextual clues within the messages themselves that revealed the identity of the sender. The court also rejected the idea that the defendant’s physical proximity to the cell phone when it was seized was probative of the defendant’s authorship of the text messages made days or weeks earlier. Under these circumstances, the court concluded that the admission of the text messages was an abuse of the trial court’s discretion.   

With Koch, the Pennsylvania Superior Court has made clear that an individual’s mere association with an e-mail account or cell phone number is an insufficient evidentiary basis for admission of a text message, e-mail, or instant message. A party seeking to introduce electronic communications at trial should be prepared to produce circumstantial evidence that corroborates the identity of the supposed sender. Koch provides some guidance as to what that circumstantial evidence might be: testimony from the sender or recipients, or contextual clues within the message itself. Merely identifying the phone or account from which the message came, however, is not enough.

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