Closing The Loop

The trial of the century began this week, as Taylor Swift and a former disc jockey met in civil court in Denver, Colorado. (Okay, well maybe not the trial of the century, but certainly a trial of the century.) The DJ, David Mueller, sued Swift in 2015, saying she falsely accused him of groping her at a pre-concert meet-and-greet, costing him his job. Swift countersued for assault and battery, for Mueller’s alleged groping.

While the pop star’s legal battle has certainly caught the attention of the TMZ-set, there are important lessons here for eDiscovery professionals as well. Namely: when it comes to an ESI preservation obligation, you can’t just shake it off—but you can often avoid the harshest penalties for spoliation.


Now We’ve Got Bad Blood

Mueller, who went by the nom de mic “Jackson” while a DJ, met with Swift in June of 2013, before a concert in Denver’s Pepsi Center. The two chatted and then poised for a picture. As the photo was being snapped, Swift says, Mueller lifted her skirt and grabbed her derrière. After Mueller left, Swift complained about the touching, resulting in Mueller’s removal from the concert and, two days later, his firing from his morning radio gig at Denver’s KYGO, a country music radio station.

Mueller denies the alleged groping and sued Swift for up to $3 million in damages. Swift’s countersuit claims that Mueller did indeed grope her and pledges to donate any recovery to charities “dedicated to protecting women from similar acts of sexual assault and personal disregard.”

Testimony in the case began this week, with Mueller admitting that the photo of the two is “weird and awkward,” but maintaining that it does not demonstrate any inappropriate behavior. He had simply moved into position at the last minute, he says, intending to put his arm around Swift at rib-cage level, but “apparently it went down.”

Taylor Swift is expected to testify as to her own version of the events later in the trial.

 

We Are Never Ever Getting Back Together (With Destroyed ESI)

Though the courtroom drama is currently playing out, Swift’s legal dispute has already given us some salient eDiscovery insights. While Mueller’s alleged groping may have been caught on camera, his firing was also captured on tape—well, the digital equivalent of tape, anyway. During the investigation that led to his termination, Mueller surreptitiously recorded his conversations with representatives from the radio station. (ESI caselaw, this dispute reminds us, has come a long way since its early, email-based decisions.)

Those recordings didn't stay around for too long. At some point after contacting his attorney, Mueller edited the recordings down to “clips” meant to, he says, “give an idea of what kind of questioning I went … through.” The original digital recordings still existed until Mueller had coffee spilled on his computer. Mueller then replaced his laptop and did not keep the original hard drive or recover any files from hit. An external hard drive with a copy of the files similarly “stopped working” and was discarded, leading to the loss of the ESI. 

Swift moved for sanctions, arguing that Mueller's spoliation should give rise to an adverse inference instruction, directing the jury that the entire recording “would have been unfavorable to Plaintiff.”

On July 19th, just weeks before the beginning of the trial, Judge William J. Martinez declined to order such an inference. Under the Federal Rules of Civil Procedure and Tenth Circuit precedent, Judge Martinez explained, an adverse inference instruction may only be issued if the court finds that evidence was destroyed in bad faith. While Mueller was under a duty to preserve the ESI, and while its destruction prejudiced Swift, Mueller was not culpable enough to warrant an adverse inference, one of the harshest sanctions available.

Mueller’s destruction of the recordings, Judge Martinez explained, fell somewhere between mere negligence and bad faith on the “continuum of fault.”

Plaintiff knew full well that litigation was imminent, since he was pursuing it. He knew that he was the only person in possession of the complete audio recording. He made the decision— inexplicably, in the Court’s view—to alter the original evidence and to present his lawyer with only “clips” hand-picked from the underlying evidence. This reflects that he obviously intended to make use of portions of the recording to advance his own claims. Plaintiff nevertheless failed to take any number of rather obvious steps to assure that this evidence was not lost.

Not only did Mueller fail to protect ESI on his laptop and backup hard drive, the court noted, he also “‘threw out’ his cell phone,” which was used to make the recordings and may have included relevant evidence, “months after this litigation was filed.”

But for the court to find bad faith, Judge Martinez said, Swift would have to show that Mueller was aware of the weakness in his case:

Absent a more clear showing that Plaintiff’s conduct reflected his own “consciousness of a weak case,” an adverse inference instruction is not appropriate.

Ultimately, the court concluded that Mueller was “unjustifiably careless in his handling of evidence that he had a clear duty to preserve.”


Teardrops On My Guitar Motion for Sanctions

Carelessness is far from bad faith, but it does fall under Federal Rule of Civil Procedure 37(e)(1) and the fairly broad remedial measures that rule allows. (When a party is prejudiced by the spoliation of ESI, the rule notes, the court “may order measures no greater than necessary to cure the prejudice”.)

The appropriate measure in this case, according to the court, was to allow Mueller to be cross examined before the jury regarding the destruction of ESI, “notwithstanding any limitation under Federal Rule of Evidence 611(b),” thus allowing questioning beyond the subject matter addressed during direct examination.  

The court put forward several for such a remedy. First, there was Mueller’s insufficient culpability. Second, other available evidence mitigated the prejudice against Swift—including the expected testimony of the three parties involved in the recorded conversation.

Additionally, the court explained, an adverse inference would be particularly punishing in a case that is largely a “he said, she said.”

If the Court were to affirmatively instruct the jury that it may draw an adverse inference against Plaintiff, that would put too heavy of a thumb on the scale against Plaintiff’s credibility and claims, and would unduly intrude on the jury’s role in making credibility determinations. In these circumstances, an adverse inference instruction could veer too close to directing a verdict, and would be too harsh a sanction.

Instead of such a remedy, allowing Swift to cross examine Mueller about the spoliation “has the benefit of allowing the jury to make its own assessment of the Plaintiff’s degree of culpability and of the actual prejudice to Defendants.” If the jury determines that Mueller acted in bad faith, “they will draw their own adverse inferences, whether the Court instructs or not.”

The court’s spoliation sanctions certainly won’t be the most remembered detail of Mueller v. Swift. But the ruling is an important reminder of the proliferation of ESI in many forms (digital photos, digital records), that preservation obligations apply to such evidence, and that, while courts can fashion powerful remedies for negligent spoliation, the harshest penalties often remain out of reach.

This post was authored by Casey C. Sullivan, who leads education and awareness efforts at Logikcull. You can reach him at casey.sullivan@logikcull.com or on Twitter at @caseycsull. He apologizes for all the Taylor Swift videos in this post.

2017 eDiscovery Mid-Year Review

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