What follows is a somewhat lengthy Opinion, which the Court deemed prudent to write in order to reaffirm the duties incumbent on parties and their attorneys during the discovery process, especially in the context of electronic discovery.

In Yas Caribe, eight requests for production and four interrogatories were in dispute.  The issue that this blog post focuses on is unsupervised self-collection by Defendants.  “[T]he EEOC highlights that several of its document requests entailed the collection of ESI, but maintains that defendants’ collection efforts were unsupervised by counsel and demonstrably incomplete.”

WERE DEFENDANTS’ SELF-COLLECTION EFFORTS SUFFICIENT?

The Parties’ Contentions

EEOC challenged the sufficiency of Defendants’ search for documents.  Abdullah Yassin admitted that he failed to preserve ESI and failed to review his own the electronic devices, including email and texts, or those of Khalid Yassin, the alleged harasser.  Further, he had not directed any of his employees to do so.  And, the EEOC claimed “that deposition testimony revealed that relevant personnel files and employment-related documents may be stored in the offices of a non-party entity owned and operated by Abdullah Yassin, called Yassin Unlimited Drug Corp. d/b/a Droguería San Juan,” and none of this stored information had been disclosed. Id. at *5.

The EEOC sought two types of relief. First, it asked that “Defendants be required to amend all of their Responses to EEOC’s [document requests] to clearly state: (1) whether responsive documents exist; (2) what steps were taken to locate responsive documents; (3) whether any documents are being withheld.”  Second, it asked for forensic inspection of the cell phones of Abdullah Yassin and Khalid Yassin, and a re-opening of discovery.

Defendants responded that Abdullah Yassin testified that he had not deleted anything and had no responsive documents.  They asserted that the messages EEOC relied on to show insufficient production had eventually been produced.  Further “defendants produced a ‘Messages Search Certification’ subscribed by Abdullah Yassin to the effect that he personally supervised Khalid Yassin’s search of his cellphone for responsive messages exchanged with Ms. Wilkerson, and further produced three responsive pages.”  Finally, in what I suggest is an incorrect position:

[D]efendants’ attorney argued in response to the motion to compel that directly supervising any search for responsive documents in his client’s files would make him a “potential witness” and would be “ethically inappropriate.”

The EEOC challenged the sufficiency of the “Messages Search Certification” and it had obtained the messages independently from Ms. Wilkerson, not from Defendants. Id. at *10-11.

Discovery on Discovery

There was a threshold issue.  The court described the EEOC’s position as a request for “discovery on discovery.”  This is sometimes called “satellite discovery” or “culpability discovery.”  The court enunciated several principles governing that process.

“Discovery on discovery has been described broadly as ‘any discovery seeking information regarding a party’s preservation, collection, and retention efforts.’ …  Although some trial courts have considered these types of discovery requests to be outside the scope of Rule 26(b)(1), others have not.” Id. at *6 (citations omitted).  The court continued:

In any case, the general structure of the discovery process drawn into the Federal Rules of Civil Procedure strongly implies that such discovery should be the exception, not the rule. “The federal discovery system in some ways resembles an ‘honor system,’ ” where the party seeking discovery “must generally ‘rely on the representations of the producing party or its representative that it is producing all responsive, relevant, and non-privileged discovery….’  Casting doubt on a responding party’s efforts to provide full and complete discovery responses is by no means taboo, but anyone attempting to obtain a remedy on that ground must overcome the default assumption of good-faith compliance. This is even more so when the attempted second-order discovery targets a person’s electronic systems or devices….”

Id. (emphasis added; citations omitted).  Here, however, the threshold was crossed.  For more information about “discovery on discovery,” please see the citations at the end of this post.

Defendants’ Efforts Were Insufficient

The court wrote: “Defendants’ initially deficient response to the document request and Abdullah Yassin’s deposition testimony as to the inadequacy of his search raise substantial doubts as to defendants’ compliance with their discovery obligations.”

While a single missing text message does not normally justify discovery on discovery, id. at *11, here there was also testimony that Abdullah Yassin had failed to preserve and collect documents related to the alleged harassment, had failed to search his own email and text messages, had failed to search the electronic devices of relevant custodians, including the alleged harasser, and had not instructed anyone else to do so.  Id. at *11.  Further, while the EEOC had suggested search terms that the court viewed as reasonable, “Defendants did not describe what, if any, search terms they used to find responsive documents….” Id.

Self-Collection Should Be Supervised by Counsel

With limited exception, the requirement that an attorney supervise a client’s collection is well established:

• Unsupervised Self-Collection Predictably Led to Problems (Jan. 2, 2021);
• Self-Identification and Self-Preservation: A Fool for a Client? (May 26, 2011);
• Losey, “Another ‘Fox Guarding the Hen House’ Case Shows the Dangers of Self-Collection” (Mar. 20, 2011).

There is contrary authority, which may be limited to a situation where there is no indication that relevant information has gone missing. Maker’s Mark: A Different View of Self Collection (Aug. 3, 2021).

Further, there are defensible ways to conduct self-collection.  “Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System (Jan. 19, 2024). However, that method was not used in Yas Caribe.

Defendants’ Attorney’s Argument That Supervising a Search Would be Improper

Defendants’ attorney in Yas Caribe wrote:

It is my understanding that being with a witness while s/he searches for the requested records, explaining to the witness what is requested, verifying that the information is pertinent to the request, and asking the witness to produce everything he has, complies with a “reasonable inquiry” requirement. Otherwise, a counsel’s active search for those records will make a counsel a potential witness if a client misses a text message or for any other reason. I believe that my discussing every question or discovery request with my witnesses, while they are answering, producing documents, or giving instructions to their secretaries or assistants to look for and produce exactly what was asked for, is involvement that complies with Rule 26(g)…. And how would I remember what I saw? How would I know if they are showing me everything, or if messages were deleted, or if they have changed telephones? … Still, I believe it is inappropriate for me to get involved in the witnesses’ telephones, computers, etc., beyond what I already have.

As noted above, he argued that supervising his client’s collection would make him a “potential witness” and that it would be “ethically inappropriate.”  Id. at *6.  In my opinion—and more importantly, the court’s opinion—he was incorrect.

Supervising a Client’s Search Does Not Make an Attorney a Witness

In response to the argument that supervision would make the attorney a witness, the court wrote: “The Court first notes that neither supervising nor assisting a clients’ document search converts an attorney into a witness in a case. In fact, such supervision may be required in appropriate circumstances….  Indeed, the existence, relevance, and discoverability of ESI is one such circumstance that counsels in favor of attorneys exercising diligent supervision over their clients’ efforts to comply with discovery requests….”

Quoting a prior decision,[1] it added: “Attorneys have a duty to oversee their clients’ collection of information and documents, especially when ESI is involved, during the discovery process. Although clients can certainly be tasked with searching for, collecting, and producing discovery, it must be accomplished under the advice and supervision of counsel, or at least with counsel possessing sufficient knowledge of the process utilized by the client. Parties and clients, who are often lay persons, do not normally have the knowledge and expertise to understand their discovery obligations, to conduct appropriate searches, to collect responsive discovery, and then to fully produce it, especially when dealing with ESI, without counsel’s guiding hand.”

Of course, where there is a prima facie showing of spoliation, an attorney may be compelled to disclose how the litigation hold was implemented and how the search was conducted. The Hon. Paul W. Grimm, M. Berman, et al., “Discovery About Discovery Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information?,” 37 U.Balt.L.Rev. 413 (2008).

Failure to Supervise May Run Afoul of Fed.R.Civ.P. 26(g)

The Yas Caribe court also looked to Fed.R.Civ.P.26(g), the so-called “stop and think” rule:

As to Attorney Mihailovich’s compliance with Rule 26(g)(1)’s reasonable inquiry requirement, his position warrants discussion. As mentioned above, Rule 26(g)(1) imposes on the signer of a discovery request, response, or objection a duty to perform a “reasonable inquiry.” Fed. R. Civ. P. 26(g)(1)….  In the case of a response to a document request, this duty falls squarely on the attorney, whereas interrogatory responses must be signed by both the attorney and the person who answers them. Fed. R Civ. P. 26(g)(1), 33(b)(5). [emphasis added].

The Yas Caribe court added: “An attorney’s failure to adequately guide and supervise a client’s search for responsive ESI may run afoul of Rule 26(g).”  Quoting a prior decision, it wrote: “[A]n attorney cannot abandon his professional and ethical duties imposed by the applicable rules and case law and permit an interested party or person to ‘self-collect’ discovery without any attorney advice, supervision, or knowledge of the process utilized.”

Application of Principles to Facts Presented

The court had little trouble rejecting the attorney’s argument on the facts presented:

In this case, such supervision was objectively warranted. Abdullah Yassin testified that he did not perform an adequate search for responsive documents, even when his attorney represented that he was “with a witness while s/he searches for the requested records, explaining to the witness what is requested, verifying that the information is pertinent to the request, and asking the witness to produce everything he has ….”

While, in making an inquiry, the court wrote that an attorney may rely on assertions of the client, that is permissible only “‘as long as that reliance is appropriate under the circumstances.’ 1983 Advisory Committee Notes to Rule 26(g).”  The court added:

A discovery request for ESI in a party’s cellphones and computer systems is a circumstance that triggers an attorney’s need to, at a minimum, understand how a client stores and uses ESI and how and where the client is searching for responsive documents.

As officers of the court, attorneys have a duty to make legally sound arguments and good-faith factual representations to the court. If an attorney does not have sufficient information to know whether his client is being accurate or not in a discovery response, particularly one involving ESI, this duty requires that he or she inquire deeper. “[T]he ethical rules now require attorneys to be competent with technologies such as ESI.” City of Rockford v. Mallinckrodt ARD Inc., 326 F.R.D. 489, 492 n.2 (N.D. Ill. 2018) (citing Model Rules of Pro. Conduct r. 1.1, comment 8 (A.B.A.)).[2] Attorney Mihailovich should have assumed a more active role in guiding defendants’ search beyond what he described in the opposition to the motion to compel. At the very least, he should have inquired into how and where the searches were being made so that he could give a reasonably informed certification of the thoroughness of what sources were and were not searched. Ideally, he would have discussed and run the keyword searches proposed by the EEOC or a mutually agreed upon version of them. Judging from the subsequent interactions of the parties that are on record, defendants’ position has been to engage in piecemeal corrections to their deficient responses and only when specific deficiencies are revealed by the EEOC’s efforts. This is not the way. [emphasis added].

The court provided “an admittedly extreme example: when attorneys receive documents that have been redacted by their clients and do not know what has been redacted, they cannot responsibly certify that the factual basis for a disclosure is compliant with Rule 26(g)(1).”

The court added that perfection is not the standard of review.  Instead, review is under an objective standard similar to Rule 11.

CONCLUSION

Applying principles of proportionality, the court considered privacy interests related to a forensic copy of the cell phones, and concluded that the burden would outweigh the benefits:

While there is certainly a well-founded suspicion that an adequate search was not carried out, and that defendants thus failed to comply with their discovery obligations, that does not necessarily mean that defendants are withholding responsive documents. After all, defendants represented that they had no messages between Abdullah and Khalid Yassin about Ms. Wilkerson or the alleged sexual harassment incident…, and the messages subsequently produced by defendants matched those in possession of the EEOC. In other words, there is no indication that, as of today, defendants have willfully withheld responsive documents or incurred in spoliation—only that they have not adequately searched for documents that may exist relating to the alleged sexual harassment incident at the center of the EEOC’s complaint.

As such, the request for a forensic inspection was taken “off the table for now” and the EEOC’s alternative request to compel Defendants to run supervised searches was granted.  For example, “defendants are ORDERED to perform an attorney-supervised search of both Abdullah Yassin and Khalid Yassin’s cellphones for responsive communications (email, text messages, call logs, etc.) across all relevant e-mail and messaging platforms/applications for [specified] periods….” As to one search, the response must include “the persons assisting in said searches….”

While the Yas Caribe court addressed several other issues, it stands for the principle that unsupervised self-collection is insufficient, at least where there is a factual predicate showing that the searches were insufficient.

For more information on “discovery on discovery,” please visit:

• The Case of the Missing Lab Notebooks (Aug. 28, 2026);
• “The Court is keenly interested in whether Defendants’ counsel issued a litigation hold.” – E-Discovery LLC (Feb. 19, 2026);
• “Discovery on Discovery” Ordered After Amazon’s Flawed Implementation of Litigation Hold (Oct. 15, 2025);
• Limited “Discovery on Discovery” Permitted; Judicial Definitions of “Hit Report” and “Families” Held Unnecessary (Oct. 13, 2025);
• “Discovery on Discovery” Permitted (Sep. 4, 2025);
• Guidelines for “Discovery on Discovery” (Aug. 5, 2025);
• Request for “Discovery on Discovery” Was Overbroad; Uber Deponent Was Ordered to Bring Uber Laptop to Deposition; Discovery About Uber Information Governance Training Resolved (Jul. 4, 2025);
• Google Avoids Discovery on Discovery Based on Insufficient Foundation for Request (De. 18, 2024);
• The Hon. Paul W. Grimm, M. Berman, et al., “Discovery About Discovery Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information?,” 37 U.Balt.L.Rev. 413 (2008).

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.

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[1] For a discussion of the prior decision, please see Unsupervised Self-Collection Predictably Led to Problems (Jan. 2021).

[2] For an update on the ethical duty of “technological competence,” please see 40th State Adopts a Duty of Technological Competence – Is It a Good Idea? (Mar. 31, 2022); Proposed Changes to the MD Attorneys’ Rules of Professional Conduct Re: AI (Jul. 21, 2026).

The court’s order in EEOC v. Cemex Construction Materials Florida, LLC, 2026 WL 914836 (M.D. Fla. Apr. 3, 2026), covers a lot of e-discovery ground. Among other holdings, the court ordered production of “hit reports” and ordered counsel to supervise a cell phone search.  It also validated “sufficient to show” document requests.

The EEOC moved to compel production of responsive materials. Cemex asserted a boilerplate litany, “arguing that the requests are irrelevant, unduly burdensome, and disproportionate to the needs of the case.” The Cemex court noted its broad discretion under Fed.R.Civ.P. 26 to compel discovery.

In “Alice in Wonderland,” Lewis Carroll wrote “Begin at the beginning and go on till you come to the end: then stop.”

RELIGIOUS ACCOMODATION ALLEGATIONS

It is alleged that Ms. Textor was an experienced driver who was employed by Cemex as driver of a concrete mixer truck. Compl., ¶12-14. She is an Apostolic Christian. Id., ¶16. “Ms. Textor’s religious beliefs require that she wear a skirt or dress while in public.” Id., ¶ 17.

“[Cemex employee] Mr. Rawls told Ms. Textor that she can wear a skirt if it is worn over pants. Ms. Textor agreed to do so.” Id., ¶21. The employer asserted that loose-fitting items were unsafe. Id., ¶23.  Ms. Textor replied that she could wear a skirt that was not loose. Id., ¶24.

Later, Cemex told Ms. Textor that she could not be employed if she wore a skirt. Id., ¶33.  Ms. Textor offered to wear a shorter skirt and consulted her pastor. Id.,  ¶¶33, 37. Her pastor told her that she must wear a skirt. Id., ¶37.

Ms. Textor requested a religious accommodation, id., ¶38, and Cemex replied: “We did evaluate your request and, as previously shared, it is a safety violation and therefore a requirement as an employee with CEMEX.” Id., ¶39. She was terminated.

57 RPD’s + SEARCH TERMS

The starting point is the discovery requests: “On September 29, 2025, Plaintiff served Defendant with 57 Requests for Production, along with an extensive list of ‘Proposed ESI Search Terms’ …, which terms it later revised…. The requests sought material from September 1, 2023 to the present.” Id. at *1.

RPD 24 sought: “Documents concerning or reflecting communication (including emails and text messages) between Ms. Textor and John Rawls, TJ Paul, Sophia Husebo, Julian Riffaud, Justin Latessa, and/or Clyde ‘Gator’ Fortner.”

Mr. Rawls and Mr. Paul allegedly had discussions with Ms. Textor. Compl., ¶¶19-23, 25.  Ms. Husebo was the H.R. representative. Id., ¶¶29-39.  Mr. Riffaud allegedly ordered Ms. Textor to leave. Id., ¶42.  Messrs. Latessa and Fortner are not mentioned in the Complaint.

No. 25 requested: “Documents concerning or reflecting communication (including emails and text messages) that were sent or received by John Rawls, TJ Paul, Sophia Husebo, Julian Riffaud, Justin Latessa, Clyde ‘Gator’ Fortner, Defendant’s management personnel, and/or Defendant’s human resources personnel about any of the following: (1) Ms. Textor; (2) Defendant’s dress or grooming policies or dress code; (3) the ability to wear a skirt in the Mixture Truck Driver or Ready-Mix Driver position(s); and (4) religious accommodations relating to Defendant’s dress code and/or safety policies.”

HIT REPORTS COMPELLED AFTER FAILURE TO COOPERATE

As to those two RPD’s, the EEOC suggested that Cemex’s procedures were deficient.  The court found EEOC’s concerns to be “well-taken.”

The EEOC moved to compel production of “hit reports” for each proposed search term for the requests. Initially, Cemex did not produce any email in response to those two requests.  Later, it produced “some” email.  Then  it produced approximately 500 pages of responsive documents.

The court granted EEOC’s request for hit reports:

Defendant acknowledges that its response did not include all documents responsive to Plaintiff’s search terms. However, Defendant explains, “[u]pon receiving Plaintiff’s initial search terms, Defendant ran a search utilizing those terms, which pulled 245.17 [gigabytes] of emails, amounting to approximately 120,000 emails.” … So, finding review of the responsive materials to be unduly burdensome, Defendant unilaterally added the required term “Textor*” to each of the search terms, “to significantly reduce the results to a manageable 1.08 [gigabytes] of emails, which resulted in approximately 550 emails to review.”

Id. at * 2 (emphasis added). The court agreed with Cemex that requiring a search of 120,000 emails in response to these two requests was unduly burdensome.

However, Cemex had failed to cooperate and that failure was costly. The court wrote:

Plaintiff [EEOC] wished to work with Defendant to narrow its requests. Indeed, Plaintiff requested hit reports for precisely that purpose. Defendant refused to provide hit reports and instead unilaterally chose to add “Textor*” to every search term. This method appears highly likely to exclude documents responsive to Plaintiff’s relevant requests.

Because the method Defendant used to identify documents responsive to Requests 24 and 25 appears insufficient, I grant Plaintiff’s motion to compel hit reports. The request for hit reports appears to be a reasonable means to facilitate a bilateral attempt to narrow an otherwise substantial discovery request. See The Sedona Conference Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery, 15 SEDONA CONF. J. 217, 225 (2014) (“Parties and their counsel should make a good faith attempt to cooperate when determining the use of particular search and information retrieval methods, tools, and protocols (including keywords…and other types of search parameters and quality control measures[)].”).

Id. at *2 (emphasis added).  Cemex’s refusal to provide hit reports and negotiate appears indefensible. Hit reports are routinely exchanged. See Limited “Discovery on Discovery” Permitted; Judicial Definitions of “Hit Report” and “Families” Held Unnecessary (Oct. 13, 2025)( “The Court declines Defendants’ invitation to further define terms such as ‘hit report’ and ‘families’ as a reasonably diligent search of this Court’s and the Circuit’s jurisprudence governing ESI reveals that the terms are commonly accepted.”); Hit Reports – Part IV – Request for “Nonresponsiveness” Log Denied (Jan. 2, 2025); Does Every “Hit” on a “Hit Report” Have to be Produced? (Nov. 13, 2024); 8 Lessons Learned – Part II – “Hit” Report Provision of ESI Protocol (May 7, 2024); How to Avoid Contentious “Hit Report” Problems – Part III (Nov. 15, 2023);  Hit Reports (Aug 14, 2022)

UNSUPERVISED SEARCH BY A LITIGANT IS INSUFFICIENT

The court wrote: “Next, Plaintiff [EEOC] asks the Court to order Defendant to conduct an attorney-directed and attorney-supervised search of its custodians’ cellphones to identify and collect communications responsive to Requests 24 and 25. I grant the request.” Id. at *2.

The facts presented by the EEOC were damning. Cemex admitted that it asked its custodians to search and collect responsive materials from their own devices. Id. at *3.

Plaintiff explains that Defendant admittedly allowed employees to identify and collect responsive documents from their own cellphones…. Plaintiff noticed that Defendant did not produce certain texts that Plaintiff knew to be responsive, and when asked about the omissions, defense counsel could not say how the searches or collections were done or explain the omissions.

Id. at *3. Cemex could not explain the protocols used or any quality control measures. “Rather, Defendant argues that the attorney-directed and supervised search is unnecessary, because the custodians themselves say there are no more responsive documents, the search is intrusive, and Plaintiff has not suggested any discovery malfeasance.”  Id. at *3.

That argument has long been rejected. See “Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System (Jan. 19, 2024); Unsupervised Self-Collection Predictably Led to Problems (Jan. 2, 2021); Media Reports “Dr. Phil accused of deleting incriminating texts amid bankruptcy filing….”; Accusation is Disputed (Dec. 28, 2025); Self-Identification and Self-Preservation: A Fool for a Client? (May 26, 2011)( self-collection is the ESI equivalent of “do-it-yourself” home repair.  If successful, it can save money.  If not, it can lead to bigger problems.); cf. Maker’s Mark: A Different View of Self Collection (Aug. 3, 2021).

Cemex’s argument landed with a thud.  The Cemex court wrote: “Defendant’s argument misses the mark. An attorney is responsible for certifying discovery responses, and that obligation requires an attorney to be confident in the integrity of the underlying search, collection, and production procedures.” Id. at *3.  Further, the EEOC demonstrated that documents were missed. “This provides a reasonable basis for Plaintiff’s request.” Id.

“SUFFICIENT TO SHOW” REQUESTS

The EEOC’s sixth RPD was for “Documents sufficient to show position descriptions, requirements, duties, qualifications, performance metrics, and/or performance review documents for the Mixture Truck Driver or Ready-Mix Driver positions(s) with Defendant, and any changes thereto, from January 2023 through present.” [emphasis added].

It is noteworthy because of the EEOC’s prudent use of a “sufficient to show” document request. Id. at *3-4.  Cemex argued that the request called for every document that “even references” the topics.  The court disagreed:

Were this so, I might agree that such a request would be overbroad. However, as the actual request seeks only documents “sufficient to show” the listed characteristics of the job. I do not find the request, as written, to be overbroad, and Defendant makes no showing that the request, as written, is unduly burdensome.

Id. at *4; accord id. at *5-6 (documents “sufficient to show”).

The EEOC attorneys’ prudent use of “sufficient to show” requests reflects modern practice.  See Requests for Documents “Sufficient to Show,” Instead of “Any and All” Documents (Jun. 30,, 2025); Timeliness, Showing of Incomplete Production, and “Sufficient to Show” Discovery Requests (Jan. 3, 2025); New Sedona Primer Implements the “Bull’s Eye View” of Discovery Requests (Dec. 8, 2021); M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts,” 28, 96 n. 1, 193 (Md. State Bar Ass’n. 2020).  In the Sedona Primer, Prof. Steven Gensler wrote: “ No one shoots at a target by aiming for the outermost circles. You aim first for the bull’s- eye. Discovery should be approached in the same way—go first for what is most important, then follow up (if needed) with the information of lesser value. . . . The goal is to avoid the ‘I want everything— and a pony!’ approach to discovery. . . .” [emphasis added].

Several other issues were decided, with the court stating, for example: “Given that Defendant, again, does nothing to demonstrate any burden associated with responding to this request, I grant Plaintiff’s motion as to Request 38….  While the Court may have been receptive to the claim that requesting each of these categories of documents was disproportionate or unduly burdensome, Defendant makes no effort to specify the burden.” Id. at *6-7.

A local business contacted police and provided an audio recording of the shooting.  Gunshots could be heard and a person shouted “Sconey, are you serious? You shot her Sconey.”

As a result, the police tried to find out who “Sconey” was.  Detective Jones performed an internet search, located two profile pages, and printed two “Instagram profile pages for ‘Scony_g’ and ‘Scony_da_g,’ each with a profile picture that resembles Spencer.”[1]

At trial, the State tried to prove that “Sconey” was the defendant, Mr. Spencer.  In addition to cell phone location data and DNA evidence, the State introduced the Instagram pages.

In response to the challenge to authentication, the State contended that the Instagram printouts were offered for a limited purpose and therefore authenticated.

In footnote 3, the Court wrote that “authentication of the mere existence of a social media profile is a relatively novel issue….”  [emphasis added].  It wrote that “our courts have not opined on it yet….”

As such, one may ask why the Spencer opinion, which decided a “relatively novel issue,” was unreported.  Maryland’s New and Improved Unreported Opinion Rule Does Not Go Far Enough – E-Discovery LLC (citing unreported decisions that were found “cert-worthy” by Maryland Supreme Court); Maryland Appellate Decision Permitting Limited Forensic Search of Non-Parties’ Cell Phones – E-Discovery LLC (discussing unreported decision on novel issue); Admissibility of Internet Searches About Terminating Pregnancy – E-Discovery LLC (same).

In Spencer:  “The State made clear that it was not offering the printouts to prove that Spencer had created the Instagram profiles, but only to show that the police had found the profiles while researching ‘Sconey.’”

The Appellate Court wrote: “Although our courts have not opined on it yet, it seems obvious that, … if the proponent merely wants to establish the existence of the social media evidence, they only need proof to support a finding that the social media evidence is what the proponent claims it to be.”  It stated:

There was sufficient proof from which a reasonable juror could find that the printouts are what the State purported them to be. The State proffered the printouts to show that the police had found the profiles while investigating the nickname “Sconey.” Because the State did not offer the printouts to show who had authored them, it was not necessary for the State to authenticate the source of the profiles. [emphasis added].

In short, because the profiles were offered for a limited purpose, they were properly authenticated.[2]

Mr. Spencer also argued that the pages could have been fabricated or “the photographs associated with the Instagram profiles could have been manipulated.”  The Court rejected that argument.  It wrote that the proponent need not exclude every possibility in order to authenticate evidence and this objection went only to weight. It wrote: “Because the State need not guarantee that the printouts are what it purports them to be, Spencer’s arguments are unpersuasive.” [emphasis in original].

As a precaution, the Court addressed harmless error, writing:

In this case, the printouts of the Instagram profile pages are cumulative of other properly admitted evidence. The printouts were admitted to prove that Spencer is “Sconey.” There was other evidence at trial, however, that makes this same point. First, the State introduced Detective Jones’s testimony in which he described YouTube videos that he found that tie Spencer to “Sconey.” In researching what the nickname “Sconey” was, Detective Jones testified that he “went onto YouTube … and came across music videos for Sconey G., otherwise known as Deamonte Spencer.” Detective Jones identified Spencer as the individual in the videos. Second, the State introduced significant evidence linking the nickname “Sconey” to Spencer’s phone. This evidence included: that in Kamira and Leah’s phones, Spencer’s phone number was listed as “Sconey”; that the billing subscriber listed for Spencer’s phone number was “Sconey Smith”; that Spencer’s phone sent Leah’s phone two audio files titled “Sconey G, Snakes in the Grass” and “Sconey G, blood in the streets.” Because this body of evidence repeatedly links “Sconey” to Spencer, it proves the same point as the printouts of the Instagram profile pages and is thus cumulative. Accordingly, the admission of the printouts, if erroneous, was harmless beyond a reasonable doubt.

Maryland has an extensive body of case law governing authentication of social media and video evidence:

• “Unfriending” Evidence – Maryland Follows “Reasonable Juror” Standard in Authentication of Social Media – E-Discovery LLC
• Authenticity and the Role of the Trial Court as Gatekeeper Under Md. Rule 5-104 – E-Discovery LLC
• Authentication of Asbestos-Containing Chalk Purchased on eBay – Exemplar Evidence – E-Discovery LLC
• Authentication of Surveillance Video by Lay Witness Under Silent Witness Doctrine – E-Discovery LLC
• Can a witness authenticate a video if the video contains images that the witness did not see? – E-Discovery LLC
• Authentication of Entire Video When Witness Observed Only Part of the Events Portrayed in the Video – E-Discovery LLC
• Expert Testimony Not Required to Show Ability to Disable Location Tracking on Smartphone – E-Discovery LLC
• Is a “Composite” Video Admissible and Can a Police Officer “Narrate” It at Trial? – Part 2 of 2 – E-Discovery LLC
• Surveillance Video of Robbery Was Properly Authenticated by Eyewitness – E-Discovery LLC

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[1] The Court wrote that sometimes “Sconey” was spelled without an “e”.

[2] While I do not suggest that there was a need to discuss Griffin, the State’s approach in Spencer distinguishes it from Griffin v. State, 419 Md. 343 (2011).

In the words of Yogi Bera, Mendones v. Cushman and Wakefield, Inc., 2025 WL 2613764 (Sup. Ct. Cal. Sep. 9, 2025)(Kolakowski, J.), is “déjà vu all over again.”

However, this time the context is artificial intelligence (“A.I.”).  The court wrote that: “Here, the use of GenAI went beyond the submission of fictitious citations” and involved “deepfakes.”

In Mendones, the court suspected that altered evidence had been submitted and ordered plaintiffs to explain.  In part, plaintiffs replied that the evidence “was captured on an Apple iPhone 6 Plus using its rear camera and running iOS 12.5.5.”

The Mendones court wrote:  “Here’s the problem for [plaintiff] Maridol Mendones: Apple did not introduce Apple Intelligence until iOS18 and required an iPhone 16, iPhone 15 Pro, or iPhone 15 Pro Max.” That’s Rossbach all over again.

The Mendones court was considering a motion for terminating sanctions against plaintiffs for intentionally submitting false testimony.  Plaintiffs had moved for summary judgment.  The court wrote that:

Upon review, the Court suspected Plaintiffs’ exhibits 3, 6A, 6B, 6C, 7, 21, 27, 35, and 40 of having been altered or created by generative artificial intelligence (GenAI). For instance, exhibits 6A, 6C, and 36 purport to capture the speech and image of Geri Haas. But, while exhibit 36 appears to capture a real-life interaction, certain characteristics of exhibits 6A and 6C, such as the lack of facial expressions, the looping video feed, among other things, suggested that these exhibits were products of GenAI—i.e., “deepfakes.”

The court held a hearing and: “At the hearing on June 12, 2025, the Court’s suspicion was reinforced when [plaintiff] Maridol Mendones mentioned that some witnesses depicted in the suspect evidentiary submissions were deceased or could not be contacted by her.”

The court then issued an order to show cause why terminating sanctions should not issue against plaintiffs.  In the order, the court wrote in part:

The Court notes that some of the purported testimony submitted by Plaintiffs appears to be products of generative artificial intelligence. (Compare Pls.’ Mot. Summ. J. Ex. 36 (capturing speech and image of Geri Haas), with Exs. 6A & 6C (purporting to capture speech and image Geri Haas); see also Exs. 3, 6B, 6C, 7, 21, 27, 35, 40.) The Court is also suspicious of the authenticity of other evidentiary submissions.

The court wrote that it is “attentive to the issue of improper use of generative AI before it.”  It posed a series of questions to plaintiffs and directed that the responses be under oath.

Upon review of the responses, the court found that plaintiffs had submitted fabricated evidence in support of their summary judgment motion.  It wrote:

The Court finds that exhibits 6A and 6C are products of GenAI and do not capture the actual speech and image of Geri Haas. In other words, these exhibits are deepfakes.

The court posted  links to several videos, one of which (Exh. 6A) is re-posted here – https://drive.google.com/file/d/1xI3xCC6Xdq94PZvz7QCl6M_XDsg8q55k/view [2]

The court wrote:

While the “person” depicted in exhibits 6A and 6C bears a passing resemblance to the person depicted in exhibit 36, they are not the same person. The accent, cadence, volume, word choice, pauses, gestures, and facial expression, among other characteristics, of the person depicted in exhibit 36 are vastly different from those demonstrated by the “persons” depicted in exhibits 6A and 6C. The “persons” depicted in exhibits 6A and 6C lack expressiveness, are monotone, do not pause at moments where pauses are expected, use odd words choices, and appear generally robotic. Further, the mouth flap does not match the words being spoken. Juxtaposing these three videos together, it becomes clear that whoever the “persons” depicted in exhibits 6A and 6C are, they are not the person depicted in exhibit 36.

The oddities of exhibits 6A and 6C are typical features of videos created by GenAI.

Reviewing another exhibit, Exh. 7,[3] the Mendones court wrote: “The lighting, contrast, color, and sharpness of the man depicted in these pictures compared with the lighting, contrast, color, and sharpness of the background shows that the man was stitched into the photograph taken by the Ring camera. A close inspection shows that the background is in black and white, while the man is in color.” It compared the photos to others and found material alteration.

As to other evidence, Exhs. 35 and 40,[4] the court wrote: “In their declaration, Plaintiffs stated that the messaging platform in exhibit 35 is Instagram and exhibit 40 is a Zoom iPhone group chat. These statements strain credulity: Looking at the menu bar on the lower part of the images, it is clear to this Court that exhibits 35 and 40 seem to depict the same messaging platform. Further, the font style, spacing, and sizing appear off on exhibit 40, suggesting the names and messages were altered.”

The court also found the metadata to be altered. It contained information not typically found in metadata, such as a copyright assertion.  The court wrote that it “suspects that material metadata was added at some later point in time by someone with access to the files and with editing privileges.”

That brings us back to the similarity to Rossbach.  The Mendones court wrote:

The Court did not find Plaintiffs’ explanations in their respective declarations to be credible. Notably, in response to the first question, Maridol Mendones declared that artificial intelligence was used in all videos marked as exhibits 6A to 6D. (Pls.’ Decls. at 3:23–26.) Maridol Mendones sought to shift the blame to Geri Haas for providing her with this video testimonial. (See id. at 3:13–4:3.) Her explanation, however, is not credible: Assuming the veracity of the metadata, exhibit 6A was captured on an Apple iPhone 6 Plus using its rear camera and running iOS 12.5.5. (See id. at p. 16.) Here’s the problem for Maridol Mendones: Apple did not introduce Apple Intelligence until iOS18 and required an iPhone 16, iPhone 15 Pro, or iPhone 15 Pro Max. (See Apple Inc., Apple Intelligence, https://www.apple.com/apple-intelligence/ (last visited September. 5, 2025.) (“Apple Intelligence is available in beta on all iPhone 16 models, iPhone 15 Pro, iPhone 15 Pro Max, iPad mini (A17 Pro), and iPad and Mac models with M1 and later, with Siri and device language set to the same supported language, as part of an iOS 18, iPadOS 18, and macOS Sequoia software update.”).) As such, Maridol Mendones explanation about why the person depicted in exhibit 6A is robotic is unbelievable. [emphasis added].

Before imposing sanctions, the court wrote: “The Court remains suspicious of the [four] other evidentiary submissions, but it does not have the time, funding, or technical expertise to determine the authenticity of Plaintiffs’ statements or conduct a forensic analysis of the suspect evidentiary submissions.”

Finding that monetary sanctions were not appropriate, it wrote:

Here, the use of GenAI went beyond the submission of fictitious citations. Plaintiffs submitted at least two exhibits created by GenAI. Further, to an even greater extent than expressed by the Hayes court, the use of deepfakes in a case significantly undermines the Court’s ability to administer justice, significantly erodes the public’s confidence in the judicial system, and significantly burdens under-resourced and overworked courts with the time-consuming task of assessing whether evidence presented to it during pretrial proceedings was a deepfake. As such, a more severe sanction is appropriate. [emphasis added].

The court decided that referral for criminal prosecution was not appropriate because it would be “too severe and not sufficiently remedial.”  It also found that evidence and issue sanctions were not appropriate:  “While an evidentiary or issue sanction would exclude some things that can be shown to be created by GenAI, others might sneak through the Court’s or opposing party’s analysis. Without robust safeguards to guard against future misuses of the legal proceedings, an evidentiary or issue sanction is effectively toothless.”

The court concluded that terminating sanctions were appropriate. The action was dismissed with prejudice.

Thanks to Mary Mack and EDRM for alerting me to this case.

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.

UPDATE: For two excellent blogs, see Doug Austin, Deepfake Videos and Images Lead to Terminating Sanctions (Sep. 25, 2025), and Judge Schlegel, What happens when AI deepfakes fool a judge? (Sep. 25, 2025).

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[1] Rossbach v. Montefiore Medical Center, 2021 WL 3421569 (S.D.N.Y. Aug. 5, 2021), aff’d in part, vacated in part, remanded, 81 F.4th 124 (2d Cir. 2023), is discussed in Fabricated Text Messages – – Some Lessons Are Never Learned (Jan. 14, 2025).

[2] Unfortunately, screenshots referenced by the court are not viewable on Westlaw.

[3] Id.

[4] Id.

Faced with a producing party’s “infuriating” and “woefully inadequate” responses, on the one hand, and a premature, ex parte motion, on the other, the court demanded a better factual predicate.  It wrote:

Something does not add up, but it is unclear whether it is spoliation, absurdly bad record keeping, failure to comply with this Court’s orders, or some combination of the three. Without that information, the Court is hard pressed to decide what sanctions are appropriate and why. For example, to decide whether there is prejudice from the acknowledged purging of email accounts, the Court needs some sense of what accounts those were, the information presumed to be there, and the circumstances under which they were purged.

To set the stage:  “This is a copyright case. Plaintiff Artists Revenue Advocates alleges that its copyrighted work was used without its permission in the songs Hurricane and Moon, leading tracks from Defendant Kanye West’s album Donda…. Defendants deny liability.”

The defendants are Kanye Omari West, Getting Out Our Dreams, Getting Out Our Dreams II, Yeezy, LLC, Yeezy Supply LLC, and OX Paha, Inc., “all entities associated with West.”

The Central District of California’s Local Rule 7-19 permits ex parte applications. Notice must be given to the opposing party.  Under L.R. 7-19.2, the Judge may hear the application without notice, upon a showing that doing so is in the interest of justice.  L.R. 37-3 states:

Unless the Court in its discretion otherwise allows, no discovery motions may be filed or heard on an ex parte basis absent a showing of irreparable injury or prejudice not attributable to the lack of  diligence of the moving party.

The West court explained the procedural history. Plaintiffs served a document request.  After several extensions of time and meet-and-confers, defendants responded with only objections.

After more attempts to resolve the matter, plaintiffs moved to compel. The court “largely” granted the motion and, after defendants asserted that “they had conducted a reasonable inquiry into materials within their possession but had found no responsive documents,” the West court ordered defendants to submit an affidavit showing their efforts to respond.

The court wrote: “The Court did not grant the request for a Rule 30(b)(6) deposition but warned Defendants that that relief would be on the table if the declaration was not adequate to the task.”

Next, defendants produced 63 pages and a declaration from Milo Yiannoploulos, once the chief of staff and now an “irregular consultant.”  In the declaration,  the defendants pointed to their information governance as an excuse.  The court wrote:

Mr. Yiannopolous states that, while Yeezy LLC is “scrupulous” about complying with tax, employment, and other “statutory matters,” it does not keep conventional business records….  He states that some records exist but are held by third parties…. He claims that some of the information Plaintiff seeks would be “injurious” to Plaintiff’s claims….  He claims that “entire contents of work email accounts [are] purged on a regular basis.”… He claims that “employees and contractors” have not provided requested documents in response to their requests….  He says, in some instances, he has looked and “finds no records.” … He claims that other instances that documents are simply “waiting to be discovered.” … Other things are a “mystery to everyone at Yeezy.” … Moreover, Mr. Yiannopoulos makes minimal efforts to explain which excuse applies to which missing discovery.

In the court’s words, the “declaration offers a bevy of excuses for why production has been slow in coming and minimal once it arrives. [The declarant] promises that more is on the way but warns that some of the requested items simply do not exist.”

After receipt of what the court called a “paltry production,” the plaintiffs filed an ex parte request for sanctions and spoliation, including terminating sanctions.  “As for the ex parte nature of the request, Plaintiff states that the approaching discovery cutoff (in mid-October 2025) justified moving ex parte.”

The court wrote:

There is no fire here. Plaintiff is frustrated, and rightly so. Plaintiff is concerned about the clock ticking on its discovery cutoff, and rightly so. If Defendants’ production continues at its current pace, they will not finish by the current discovery cutoff. Even so, an ex parte application is not the solution. There are still nearly four months in the discovery period. Motions can be decided on shortened time where an appropriate showing has been made.

It added:

The Court notes that Plaintiff filed this ex parte application knowing that this Court’s rules would require Defendants’ counsel to respond the next business day and knowing that Defendants’ lead counsel and his wife had welcomed their first child just two days earlier.

On those facts, the court added:

Pulling the trigger on an ex parte application too quickly is an error in legal judgment. Doing so under these circumstances is simply heartless and cannot be justified by any level of frustration with opposing counsel or his clients. [Emphasis added].

It wrote: “Next time there’s no fire, the application will be struck.”

On the merits, after finding the matter fully briefed, the court wrote: “Plaintiff jumps the gun in another sense: it requests spoliation sanctions, terminating sanctions, and evidentiary sanctions finding defenses to liability and privilege objections waived without adequately establishing the evidentiary basis for those requests.”

The West court wrote: “Saying that Kanye West is an artist who doesn’t really care about money and doesn’t really keep records is not an adequate excuse. Begging indulgence, forgiveness, and patience is likewise not appropriate; patience on all sides was exhausted long ago. The relevant discovery was requested in November 2024, and the Court and the parties still lack basic information about what records exist, whether any records were spoliated, and why existing discovery has not yet been produced.”

Defendants offered, and the court ordered, a deposition of the declarant.  The West court wrote: “Once Plaintiff has taken that deposition, it may move for whatever relief it deems appropriate.”  It concluded:

Defendants should not take denial of the full relief sought by Plaintiff as sanctioning their conduct. Defendants have repeatedly blown off this Court’s orders and substantial sanctions will almost certainly be warranted, particularly if Defendants take this deposition with the same seriousness as they have taken their other discovery obligations to date. If they are serious about trying to right the ship, now is the time to do so. [Emphasis added].

The court wrote that: “Serious sanctions may eventually be warranted in this case, but the Court will not grant such relief on this record, and on an ex parte basis. With the discovery cutoff still four months away, the Court grants an intermediate sanction and invites Plaintiff to return with a noticed motion, accompanied by a request to shorten time if necessary, supported by a greater evidentiary showing that the relief sought is appropriate. Further attempts to seek relief on an ex parte basis will be struck in the absence of a circumstance warranting such treatment.”

As to ex parte requests, the West court wrote:  “Hearing a motion on shortened time has a significantly different impact than an ex parte application does, both on counsel and on the Court, and is the more appropriate method to deal with time sensitive questions that are not emergencies.”

The following day,  the Court ordered Defendants to pay Plaintiff $52,105.  2025 WL2014460 (C.D. Cal. Jun. 27, 2025).

In a third decision, 2025 WL 1416943 (D. Md. May 16, 2025)(“Cooper III”), the Court addressed defendants’ spoliation motion.  Defendants went a bridge too far in seeking Fed.R.Civ.P. 37(e)(2) sanctions.  The Court wrote that they did not request, but were entitled to, Rule 37(e)(1) sanctions.  That is a recurrent theme in a number of cases.

Ms. Cooper alleged sexual harassment by her former supervisor, Mr. Roberts, while they both worked for GardaWorld, which provided security services for co-defendant Baltimore Gas & Electric Co.  She also alleged discrimination and retaliation when quid pro quo sexual services ceased.  She claimed that her complaint led to her termination on August 26, 2022.

THE WORK CELL PHONE ISSUE

Cooper I shows the need to stay current on changes in the law applicable to spoliation and the requirement of providing proof of each element of that Rule.  Ms. Cooper fell short when she relied on the Court’s common-law inherent power, instead of Fed.R.Civ.P. 37(e).  That Rule was amended in December 2015, to preclude the use of inherent powers.

Three days after termination, Ms. Cooper alleges that she provided text messages with Mr. Roberts to an officer of GardaWorld.  She claims that they showed the inappropriate nature of the relationship.  Mr. Roberts was fired the next day.  The Court recited the key facts:

• “Plaintiff cites additional explicit text messages between herself and Mr. Roberts in her Complaint.”
• “At her deposition, Plaintiff was asked whether any these explicit text exchanges were sent to Mr. Roberts’ work phone and she responded ‘not to my knowledge.’”
• “Relatedly, Plaintiff has testified that to the best of her ability, she took screen shots of, and provided to counsel, all relevant texts between herself and Mr. Roberts.”

Mr. Roberts surrendered his work cell phone to GardaWorld when he was terminated.  It was reissued to his replacement about two or three days later.  At that time, it still contained Mr. Roberts’ contacts and texts.  The new user did not delete them and retained the phone until January 2025, when asked to turn it over to counsel.  Counsel retained it in a secure locked location until it was turned over to the forensic expert discussed below.

The Court ordered a forensic examination of the work phone by James Vaughn of iDiscovery Solutions.  “Mr. Vaughn created a forensic image of the phone at issue, and employed search terms agreed on by counsel, but found no explicit text messages.”

In a remarkable misfire, Ms. Cooper moved for sanctions based on the Court’s inherent authority.  The Court pointed out that, since 2015, Fed.R.Civ.P. 37(e) “provides the exclusive analytical framework” and the Court applied the Rule, noting that: “Plaintiff’s failure to rely on the correct standard puts her analysis at odds with the current state of the law in important respects.”  The Court explained that the requirements under the Rule differ from those under the inherent power:  “Again, the Court distinguishes the general culpability standard applicable to loss of evidence generally, versus the more precise culpability standard for imposing sanctions for spoliation of electronic evidence is set forth specifically in Rule 37(e).”

The Court explained in detail the requirements of a Rule 37(e) motion and then applied them:

Plaintiff has failed to put forth sufficient evidence of the four necessary elements to trigger the application of Rule 37(e) at all, let alone proven by clear and convincing evidence the intent required to show she is entitled to the remedies she seeks.

To “streamline its analysis,” the Court assumed, arguendo, that the duty to preserve Mr. Roberts’ work cell phone had been triggered.  However: “Plaintiff has offered no facts to suggest that the phone was not adequately preserved.”  While there was a gap in the chain of custody, “Plaintiff presents no evidence that anything has been lost from the phone.”

The new user testified that she did not delete the texts and the forensic expert conducted a search using terms provided by the parties.  “Although no explicit text messages were found, this is consistent with Ms. Cooper’s testimony that her explicit texting with Mr. Roberts was not done to his work phone.”

Therefore, “in the absence of any evidence of a loss of data,” no sanctions were justified.

In the final sentence of Footnote 4, the Court wrote: “Defendants strenuously argue that Plaintiff’s preservation efforts were inadequate, which serves as the basis for Defendants’ own motion for spoliation sanctions.”  That motion was not addressed in the decision and is discussed below.

FAILURE TO RETAIN DRUG TESTING SWABS

In Cooper II, Ms. Cooper sought sanctions because GardaWorld did not retain two testing swabs for drug tests administered on August 25, 2022, a day before her termination.  The tests were “inconclusive.”  The U.S. Magistrate Judge recommended denial of the spoliation motion.  Unlike Cooper I, which involved ESI and Fed.R.Civ.P. 37(e), Cooper II did not involve ESI or that Rule.

Ms. Cooper alleged that her termination was a “rush to judgment as a pretextual joint decision of the defendants based on a single inconclusive test for use of a marijuana test.”  She claimed that Mr. Roberts had termination authority over her “and exerted his influence over the decision to terminate Plaintiff Cooper based on the pretext of a ‘failed drug test’ despite Mr. Roberts’ own admission to the Plaintiff of the contrary results of the test.”

Ms. Cooper admitted to smoking marijuana once or twice a day, while working at GardaWorld, in violation of company policy.  “Plaintiff testified at deposition that she was upset when, just prior to her separation, Mr. Roberts allegedly told her that GardaWorld was going to treat the inconclusive test as a positive test, and use it as a basis for termination.”  She stated “that Mr. Roberts told her she was fired in relation to the drug testing results….”  She asked for a copy of the results and it was not provided.

However, a GardaWorld manager “testified that no decision had been made to treat the inconclusive results as positive, or what, if any, action would be taken regarding the results prior to Ms. Cooper ‘walking off the job.’”

Before turning to the applicable legal principles, the Court wrote:

• “Important to the Court’s decision making here, the test results from these two tests were both preserved and provided to Plaintiff in discovery, and the parties do not dispute that the results were inconclusive.”
• “Instead, Plaintiff’s motion is based on GardaWorld’s failure to preserve the actual swabs used to take the samples for those tests, which were apparently discarded in the ordinary course of business a few weeks after the tests were administered.”

First, the Court noted that “there is no general duty to preserve documents, things or information whether electronically stored or otherwise.” [citation omitted].

Second, it wrote that the duty to preserve “is triggered when litigation is reasonably anticipated.” That “also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” [citation omitted].  However, the “mere existence of a dispute” does not necessarily mean that the duty has been triggered.  “Rather, this duty begins somewhere between knowledge of the dispute and direct, specific threats of litigation.” [citation and quotations omitted].

Third, the Court explained the common-law culpability standard applicable to the swabs.  It wrote that negligence was insufficient and the destroyer “must have known that the evidence was relevant to some issue in the anticipated case, and thereafter willfully engaged in conduct resulting in the evidence’s loss or destruction.” [citation omitted].

Fourth, the movant must establish relevance of the missing evidence.  Relevance in this context is defined to be evidence that “would have supported the claims or defenses of the party that sought it.” [citation omitted].

Here, notwithstanding Ms. Cooper’s admitted use of marijuana in violation of GardaWorld policy, the tests were “inconclusive.”  The Court wrote:

As an initial matter, the Court has serious doubts about whether GardaWorld reasonably should have anticipated litigation at the time of the drug testing. Plaintiff points only to her request to Major Engle for her drug test results, combined with an offhand comment during their phone call consisting of, “oh I have to go…my lawyer is calling me” as her sole basis.

The Court pointed to several salient facts:

• “Curiously, Plaintiff testified at deposition that she had not even retained a lawyer until nearly one month after the call.”
• “But even if, arguendo, such an interaction was sufficient to trigger a duty to preserve the test results, the Court declines to find that GardaWorld should have reasonably anticipated litigation so as to trigger a duty to preserve the testing swabs.”
• “Additionally, Plaintiff has presented no evidence that the failure to keep the drug testing swabs was anything other than Defendants’ normal routine so as to establish the requisite culpability for spoliation sanctions.”
• “Nor can it reasonably be inferred from circumstances that Defendants’ failure to preserve was based motivated by any desire to deprive Plaintiff of evidence, where neither party is disputing the accuracy of the ‘inconclusive’ results.”

Additionally, Ms. Cooper “utterly failed to articulate the relevance” of the swabs.  The Court pointed out that while Ms. Cooper had asked for test results early, she did not ask for the swabs until late in the discovery process. Her motion was based on the swabs even though neither party disputed the test results.  “As such, she has failed to establish the relevance of the swabs to any issue in dispute in the case.”

DEFENDANTS’ CROSS-MOTION FOR SANCTIONS: PLAINTIFF’S CELL PHONE

In Cooper III, a defense motion for dismissal was denied; however, the U.S. Magistrate Judge recommended alternative relief.

Both parties saw the texts as central:  “Defendants assert the alleged relationship between Plaintiff and Mr. Tavon Roberts, her former supervisor, was consensual, and contend that a full accounting of their text messages and other communications will further prove this.”  Ms. Cooper’s Complaint relied on explicit text communications.

Defendants requested production of the texts in native form. Plaintiff produced screenshots.  The Court summarized the facts:

Thus, the current state of affairs is: (1) Plaintiff has only her screenshots of the text messages between herself and Mr. Roberts, which the Court views as an incomplete inventory given that some are cut off, some have no date, there are large gaps in time that are unaccounted for, and there are references to video attachments that were not produced…; (2) Plaintiff has produced only two post-separation Facebook Messenger messages, when her testimony was that she communicated with Mr. Roberts on Messenger “almost every day” during her employment but lost access to the messages when she blocked Mr. Roberts, well after the litigation commenced; (3) Plaintiff’s inability to recall her cell phone password and iCloud credentials renders both inaccessible; and, (4) T-Mobile is unable to produce a log of the messages because the date range sought falls outside its retention period.

Efforts to subpoena or depose Mr. Roberts were “thwarted to date by his evasiveness.”

Again, and as before, Ms. Cooper incorrectly relied on inherent authority decisions.  The Court looked to Fed.R.Civ.P. 37(e), writing: “While there is some overlap between pre-amendment caselaw and Rule 37(e)’s framework, Plaintiff’s failure to rely on the correct standard puts her analysis at odds with the current state of the law in important respects.”  It repeated and amplified the analysis of the Rule as stated in its prior decisions.

First, the Court looked to the threshold elements of Rule 37e):

The Court has no trouble concluding that the four threshold requirements set forth in Rule 37(e) are easily met here. Plaintiff filed her EEOC complaint in September of 2022 and retained counsel that same month. Her text messages are prominent in that filing. Further, Plaintiff filed her lawsuit in September of 2023, where the messages are again an integral part of her allegations. There is no question that the duty to preserve relevant evidence attached at the latest in September of 2022 when Plaintiff decided to pursue her claim.

It found that the screenshots were inadequate and did not capture the full extent of the text messages.  They were cut off, undated, and there were large gaps of time.  They lacked attachments, such as videos.  “She also took affirmative steps to block Mr. Roberts, thereby depriving the parties of access to the messages during the pendency of the present suit.”  The Court found that clearly discoverable information had been lost based on lack of preservation.

The Court also concludes that neither Plaintiff nor her counsel took reasonable steps to preserve the information. While there may be cases where self-collection or screenshots could be defensible where such messages were not numerous and/or central to the allegations, this is not such a case. Additionally, based on the information presented to the Court, counsel took no steps to assist in preservation at a time when the messages were still easily preserved, and took no steps to collect the Facebook Messenger messages which were still accessible until Plaintiff blocked Mr. Roberts in approximately late 2023 or early 2024.

Finally, despite the extensive efforts, the missing communications could not be recovered.

Second, the Court looked to Rule 37(e)(2), cited by defendants, and Rule 37(e)(1), which defendants did not rely on.

Turning to Rule 37(e)(1), the Court wrote:

Though not presently before the Court (as Defendants seek only Rule 37(e)(2) sanctions), the undersigned would have at the very least recommended some sanction pursuant to Rule 37(e)(1). The nature of that sanction is less obvious.

It suggested an appropriate instruction under that Rule.

However, as to Rule 37(e)(2), it found that defendants had bitten off more than they could chew:

Plaintiff’s lack of preservation well after the duty to preserve attached and well after she had engaged counsel that tend to support such intent. For example, Plaintiff offered shifting explanations for the whereabouts of her phone, first suggesting that she traded it in but ultimately admitting it was still in her possession. She offered no details on how it became damaged, except to verify that this occurred through multiple drops, but suggesting it nonetheless remained operable until nearly a year after suit was filed. She admits that she took the affirmative step of blocking Mr. Roberts on Facebook—again after suit had been filed—understanding that the effect of that would be to make their “almost daily messages” inaccessible yet foregoing any steps to preserve those messages beforehand. And she now claims she cannot remember either the passcode for her phone nor the code for her iCloud account.

However:

On the other hand, Plaintiff’s counsel has actively attempted to recover the lost communications since at least January of 2025 when counsel agreed that a forensic examination of Plaintiff’s cell phone was appropriate (having already offered such an examination of the SIM card when it was believed the phone had been traded). … Plaintiff’s counsel has actively cooperated in the forensic process to gain access, and, when that failed to be fruitful, took the extra step of contacting Apple’s general counsel. Such efforts are inconsistent with an intent to deprive.

The evidence on intent to deprive is, therefore, mixed. Under such circumstances, the undersigned cannot conclude that Defendants have carried their burden of establishing an intent to deprive by clear and convincing evidence so as to justify the sanction they seek. Therefore, the undersigned recommends that Defendants’ Motion for Sanctions be denied.

To satisfy the requirements of Rule 26(g)(1) and comply with counsel’s ethical obligations as an officer of the Court, counsel must be actively involved in searching and producing discovery to Plaintiff.

Rule 26(g) explains the meaning of counsel’s signature on discovery responses.  The 1983 Advisory Committee Note to Rule 26(g) states: “The subdivision provides a deterrent to both excessive discovery and evasion by imposing a certification requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection.”

Plaintiff, Mr. Grullon, filed a motion to compel against defendants, Messrs. Lewis and Zappala.  As one part of that motion, Mr. Grullon alleged that defense counsel has “allow[ed] their clients to be the judges of what is relevant and responsive.”  Mr. Grullon argued that this “abdication of counsel’s discovery obligations” has led to the withholding of documents “most critical” to the case.  Id. at *1.

First, the court analyzed Rule 26(g), writing: “Counsel has an obligation to ensure the completeness and accuracy of the information produced to Plaintiff.”  It quoted Rule 26(g)(1), writing:  “By signing a discovery response, an attorney certifies that the response is ‘complete and correct’ to the best of the attorney’s ‘knowledge, information, and belief formed after a reasonable inquiry.’” [emphasis in court’s decision]. The court wrote that there is an “obligation on counsel to monitor compliance….”

Second, the court found a violation of the rule, writing:

Under the circumstances, Defendants’ counsel has not performed an objectively reasonable inquiry under Rule 26(g)(1). The parties provided deposition testimony indicating that Lewis and Zappala have been conducting searches of their devices and accounts with minimal, if any, oversight by their counsel….  It is unreasonable to assume that Defendants themselves are conducting a reasonable search without counsel’s involvement, especially considering that one Defendant has been a minor for much of the litigation. [emphasis added].

The court cited several supporting authorities[1] for the general proposition that: “It is not appropriate to take a client’s self-collection of documents, assume it is complete, and not take steps to determine whether significant gaps exist.” Id. at *1.

Ralph Losey, Esq., has long suggested a better approach. See “Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System (Jan. 19, 2024); Unsupervised Self-Collection Predictably Led to Problems (Jan. 2, 2021); Rule 26(g) Sanctions for Failure to Supervise Document Collection and Review (Nov. 27, 2020); Self-Identification and Self-Preservation: A Fool for a Client? (May 26, 2011); Does Maryland Have an Analog to Fed.R.Civ.P. 26(g)? (Dec. 23, 2022).

UPDATE: See Doug Austin, To Self Collect or Forensically Collect? Here is the Answer (eDiscovery Today Sep. 17, 2025).

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[1] The Grullon court cited: “Herman v. City of New York, 334 F.R.D. 377, 386 (E.D.N.Y. 2020) (‘It is not appropriate to take a client’s self-collection of documents, assume it is complete, and not take steps to determine whether significant gaps exist.’); Thomas v. City of New York, 336 F.R.D. 1, 5 (E.D.N.Y. 2020) (granting a motion to compel and questioning why defendants’ counsel ‘chose not to review’ document production, instead ‘relying on their clients’ statements that these chats do not contain pertinent or relevant information’); Acon v. Long Island Gay & Lesbian Youth, Inc., No. 21-CV-4642 (WFK)(CLP), 2023 WL 12073648, at *2 n.6 (E.D.N.Y. July 7, 2023) (‘[P]arties themselves should not adjudicate what is or is not relevant for discovery.”).”

Defendant Kroger moved to quash a subpoena served by the plaintiff, Mr. Whitmore, on a nonparty claims investigator, Sedgwick Claims Service.  Because Kroger did not rely on the subpoena rule, Fed.R.Civ.P. 45(d)(3), its motion was construed as a Fed.R.Civ.P. 26(c)(1) motion for protective order.

Kroger’s motion was denied and Sedgwick was ordered to produce “any remaining materials in Sedgwick’s claims file that contain nonprivileged fact work-product responsive to Whitmore’s second Rule 45 subpoena.”  In deciding the motion, the Kroger court cited the work product rule, Fed.R.Civ.P. 26(b)(3).  Although a failure to preserve video could have triggered the federal ESI sanctions rule, Fed.R.Civ.P. 37(e), the Kroger court did not rely on Rule 37(e), even though it was cited in a cross-motion for sanctions.

Mr. Whitmore alleged that a Kroger employee negligently ran into him with a pallet jack while he was shopping.  Kroger admitted some facts; however, it denied that its employee, Ms. Keefe, hit Mr. Whitmore’s shopping cart and injured him.

The Kroger court stated: “Thus, the central factual issues in this case will be whether the pallet jack made physical contact with the shopping cart and, if so, whether and to what extent that contact caused Whitmore’s alleged injuries.”

Sedgwick Claims Services is a third-party company that “investigates and administers all accident reports and claims against Kroger.”  Mr. Whitmore issued a subpoena to Sedgwick for email, communications, and video footage regarding the claim.

Kroger produced 19 pages of claims notes, some redacted, from Sedgwick’s 35-page claims file.  Kroger asserted that it withheld 16 pages as work product.  Kroger also produced a video of the dairy section taken roughly twelve hours before the incident.

However, in the Kroger court’s words, the “missing video” at issue was a recording “of the exact area where the [alleged] incident occurred” in the store’s dairy section around 10:00 p.m. on December 17, 2020….”

The Kroger court wrote that:

• “The parties dispute whether this footage ever existed, … and if so, whether it was lost because Kroger failed to take reasonable steps to preserve it….”
• “Nonetheless, Kroger concedes that there was a working video camera in the dairy section on December 17, that its employee ‘inadvertently’ saved that day’s footage from twelve hours before the alleged incident, and that any footage from the timeframe of the alleged incident on December 17 was automatically written over 30 days later…. That footage is lost and cannot be restored.”

What was the non-video work product prepared by Sedgwick that plaintiff wanted to have produced?  The court wrote that he wanted witnesses’ contemporaneous statements to Sedgwick obtained “while [Sedgwick was] investigating his claim shortly after the incident occurred on December 17, 2020, which was almost four years ago.” [emphasis added].

The court cited precedent that contemporaneous statements are unique: “Memory inevitably fades and with it the accuracy of witness statements. Accounts rendered from fresh recollections are universally held to be more reliable that those given after time has passed.”  The  Kroger court noted that Ms. Keefe and other Kroger employees were key witnesses.

The court wrote that Mr. Whitmore, who did not file suit until late in 2022, was not building his case on the back of Kroger’s strategy.  Instead, he was seeking equal access to important, contemporaneous information.  The court concluded that:  “Accordingly, Whitmore has shown a substantial need for the requested materials.”  Id. at *5.

The Kroger court also held that Mr. Whitmore could not obtain the substantial equivalent of those contemporaneous statements. “Kroger does not suggest that deposing these individuals more than three years after the incident would be an acceptable substitute.”

Was there a video that went missing?

The plaintiff said “yes.”  He referred to Kroger’s “admitted failure” to preserve the correct video.

As quoted above, Kroger admitted that there was a working video camera in the area and its employee “inadvertently” saved the wrong footage, resulting in routine overwriting of the necessary footage.

The Kroger court did not resolve the Fed.R.Civ.P. 37(e) sanctions question presented by Mr. Whitmore’s motion.  Instead, it resolved the dispute under the fact work product rule.

The court noted the factual dispute over how the plaintiff came to be injured and it wrote that:

Any video footage of the dairy aisle from the correct timeframe on December 17, 2020, is lost and cannot be restored…. I take no position on what this footage might have shown or whether it was lost because Kroger failed to take reasonable steps to preserve it. Nonetheless, the fact remains that there is no visual recording to corroborate—or to contradict—the parties’ “drastically conflicting accounts’ of what happened when Ms. Keefe encountered Whitmore in the dairy aisle that night.

On these facts, the court determined that:

The Kroger employees’ contemporaneous statements given during Sedgwick’s investigation may be important information to aid in this lawsuit’s search for the truth…. Whitmore has shown that this is one of those “limited circumstances” where he can discover his opponent’s fact work-product.

The Kroger court essentially determined that, in the absence of the video, Sedgwick’s work product was the best evidence of what happened at the time of the alleged tort.  In the words of Fed.R.Civ.P. 26(b)(3), Mr. Whitmore has shown “substantial need for the materials to prepare [his] case” and he “cannot, without undue hardship, obtain their substantial equivalent by other means.”  The court did not address the multiple sanctions factors under Rule 37(e).

One can speculate that, had the video been preserved and produced, the fact work product would likely have remained protected.

Where video was not preserved, and depending on the circumstances, secondary evidence, such as that in Kroger, may suffice: Secondary Evidence of Missing Video Permitted (Dec. 10, 2023).

Video evidence is important in many personal injury and property damage actions and its loss is often resolved using spoliation principles.  Cf. No Spoliation Instruction Regarding Surveillance Video in Supermarket Personal Injury Case (Jan. 16, 2022), with Maryland’s High Court Affirms Sanction for Spoliation of Video Evidence (Jan. 8, 2021).

Overwriting of surveillance video is often done shortly after it is recorded, and that may present information governance issues:  cf. Felder Part 3 of 4: Defendant’s Overwriting of Video Footage After 14 Days Held Not to be Spoliation (Aug. 21, 2024), with Felder Part 4 of 4: Was the Felder Defendant’s 14-Day Video Overwriting Policy Defensible? (Aug. 22, 2024).

One lesson learned is that companies rapidly overwrite video and if a party anticipates relying on a prospective opponent’s security or surveillance video, it is prudent to immediately send a specific preservation letter to that prospective party.  Felder Part 3 of 4: Defendant’s Overwriting of Video Footage After 14 Days Held Not to be Spoliation.

Preservation demands need to be prompt and follow proper procedures.  Procedural Failures in Request to Preserve Video Evidence (Feb. 22, 2023).[1]

____

[1] The Kroger Order stated that: “Counsel for Kroger hereby is DIRECTED to produce Sedgwick’s remaining claim notes to Plaintiff’s attorney within ten (10) days from the date of his Order. Kroger may redact from those materials any attorney-client communications or opinion work-product, which are outside the scope of the Rule 45 subpoena at issue, and provide a privilege log. Kroger may designate any materials as ‘confidential’ in accordance with the protective order. ECF No. 75. Counsel for the parties are directed to confer if Kroger believes greater protection is required. See Fed. R. Civ. P. 26(c)(2).”

A spinning workpiece was ejected from the machine.  It went through a heavy reinforced steel door, and both struck the plaintiff in the chest.  The discovery dispute centered primarily on plaintiff’s request for a video recording of a live-streamed, post-incident expert inspection of the machine.

The death occurred on April 2, 2020.  On April 24, 2020, one defendant, DNSA, inspected the machine.  The inspection was live streamed to defense observers.  The machine was repaired “shortly after” that inspection.

Plaintiff sought to compel production of any “photographs, videos, testing reports and evaluation reports (i.e. the raw factual information and data) about the condition of the Machine obtained during DNSA’s inspection on April 24, 2020.”  However, in response, DNSA asserted work product protection.

The court applied Fed.R.Civ.P. 26(b)(3)(A) which governs work product and Rule 26(b)(5)(A)(ii) which calls for a privilege log.  It wrote:

The privilege log DNSA provided to Plaintiff is deficient. It does not provide enough information for Plaintiff even to discern what items were withheld, much less to assess Defendant’s work product claim with respect to each one of them…. On the other hand, Plaintiff has met her burden of showing a substantial need for the requested materials and that the substantial equivalent of the information cannot be obtained through other means.

So, what happened?

Plaintiff was not present at the inspection, in person or through counsel.  She said that she was not represented at that time.  DNSA asserted that she could have obtained counsel.

The court understandably wrote: “The Court does not find that persuasive. Plaintiff’s failure to obtain counsel and an expert within 22 days of her husband’s death is a far cry from the situations the work product privilege is meant to prevent.”

Defendant made another argument. It suggested that the plaintiff “could conduct her own inspection by mounting the damaged door on the Machine.”  The court noted that the machine had been repaired, “so any inspection at this point would not provide Plaintiff with the substantial equivalent of the information obtained at the April 2020 inspection of the damaged Machine.”

Based on a letter from DNSA, plaintiff believed that there was a video of the live-streamed inspection as well as results of non-destructive testing and scanning of the machine.  The letter stated: “As part of the inspection process, our consulting experts will be conducting a non-destructive inspection of and scanning the subject turning center, including its controllers and computers, all component parts, such as the chuck, jaws and workholdings, all tools and inserts in the subject turning center at the time of the accident, the work piece and the work area.”

Plaintiff  submitted a FOIA request to OSHA.  She received a 106-page redacted file with four photographs, but no videos.  Ace, the plant operator, produced records, a .DAT file, and a video of the time when the incident occurred, but not a video of the post-incident inspection.  Defendant TechMach produced a volume of data, but indicated that it had no videos or ESI relating to the inspection.

This led the court to state: “Despite her efforts, Plaintiff has not obtained any video of the live stream inspection or the results of the non-destructive inspection and scanning of the Machine conducted by DNSA’s consulting experts at the inspection…. Plaintiff believes that information to be in the hands of DNSA based on a letter sent by DNSA’s counsel regarding the April 2020 inspection.”

Therefore, it was alleged that relevant information, obtained in anticipation of litigation by the defendant, had not been produced and the court had determined that an inspection of the repaired machine would not provide the “substantial equivalent” of the information plaintiff requested.

The court held that plaintiff had shown a “substantial need” for the information; however, DNSA’s privilege log did not disclose what information DNSA or its consultants had obtained.

Therefore, the court stated:

To the extent such information exists, the Court finds that Plaintiff has shown a substantial need for the materials and that the substantial equivalent of the information cannot be obtained through other means. As such, DNSA must provide Plaintiff with an updated privilege log that provides enough information about each item obtained during the inspection on April 24, 2020, for Plaintiff to discern whether it is duplicative of something already in her possession. The parties should then meet and confer to discuss each item. Without disclosing anything containing the mental impressions, conclusions, opinions, or legal theories of DNSA’s attorney or other representative concerning the litigation, DNSA must produce any item obtained during the inspection that is not already in Plaintiff’s possession. [emphasis added].

It will be interesting to see what happens.  There may be two potential spoliation issues.  First, the condition of the machine was changed.  Second, if there was a video of the live stream session, was it preserved?  The initial question may be whether litigation was reasonably anticipated.  I am assuming it was.

If there was a video of the live-streamed inspection, and if it provides satisfactory secondary evidence of the condition of the machine and cause of the incident, that may be sufficient to meet the duty to preserve the machine.  However, if it does not, one may speculate that a spoliation motion will follow.  If the machine was altered after the common-law duty to preserve arose, the common law doctrine of spoliation may come into play. Of course, Fed.R.Civ.P. 37(e) applies only to ESI.

If there was a video of the live streamed inspection, and if it was not preserved – – something we do not presently know – – Fed.R.Civ.P. 37(e) would likely apply.

In this blog, I focus on: (1) the employer’s post-termination downloading of the former employee’s personal emails that were stored by the former employee on company hardware; and, (2) a spoliation issue.

I also mention:  (a) the Court’s analysis of the impact of specific provisions in an employee handbook on post-termination access to those personal emails; and, (b) a possible two-party consent issue presented by the employer’s policy that it could access employee emails stored by the employee on the employer’s system.

SUMMARY OF THE DECISION

The plaintiff, Mr. Shapiro, while employed by the defendant, permitted his employer – HHI – to set up plaintiffs’ personal email on the employer’s server and computers, using an IMAP protocol.  The employee was terminated; disputes arose; and, the employer downloaded the personal email to storage media, and then deleted it from the server and computers.  However, HHI “has not been able to find” the downloaded backup.  Id. at *8.

The plaintiff asserted that the employer defendant and others (acting in their official capacity for the employer) had accessed plaintiff’s personal email after the date of termination.  He presented privacy, wiretap, and State-law Stored Communications Act claims.  But, the Court found and held that there was no evidence that the defendants had read the emails after plaintiff’s termination.

The Appellate Court held that, while the employer’s deletion of the personal emails from the server was not actionable, the employer’s downloading of them to a backup stated a claim for violation of Maryland’s Stored Communications Act.  Further it held that the employer’s right of access – – under the specific terms of the employee handbook – – ended when the employee was terminated. The Court rejected invasion of privacy and wiretap claims because there was no evidence that the employer had read the emails after the plaintiff was terminated.  Plaintiff’s spoliation claim based on loss of the downloaded emails was also rejected; however, the Court did not cite Maryland’s new spoliation rule in its decision.

Hyperheal Hyperbarics should at least raise a yellow flag for employers.  The decision reinforces the need for carefully-designed, proactive, and comprehensive information governance and litigation hold procedures.

Permitting employees to use a company’s information technology system for personal purposes has long been recognized as fraught with hazards.  E.g., Bad Things Can Happen When Company Officers Use Their Private Email Accounts for Work (May 20, 2024); Information Governance Decisions Can Carry a Big Price Tag (Feb. 23, 2022); Recent Decision Shows the Need for Information Governance, Computer Usage Policies, and Employee Training (Nov. 19, 2021).[1]

HYPERHEAL HYPERBARICS INVOLVED TWO CASES

In Hyperheal Hyperbarics,“[t]he two cases underlying this appeal are Mr. Shapiro’s Employment and Emails Suit and Mr. Shapiro’s Indemnification Suit.”  Id. at *2.  In the former, which is the only one discussed here:

• The plaintiff, Mr. Shapiro, alleged failure to pay wages and “that after his termination, HHI wrongfully accessed his personal email account and viewed and downloaded his emails. He claimed that HHI was able to do so because he had previously logged into his personal email account on HHI computers.”
• The defendant, HHI, “claimed that it never wrongfully accessed Mr. Shapiro’s post-termination emails.”

Regarding the emails, the issue presented by “question two” was: “Did the circuit court err in granting summary judgment in favor of HHI on the basis that there was no evidence showing the emails had been viewed?”  Id. at *2.  The Appellate Court of Maryland wrote: “We answer question two ‘no’ in part ‘yes’ in part.”

THE “EMAIL CASE” INVOLVED ALLEGED WRONGFUL POST-TERMINATION ACCESS BY THE FORMER EMPLOYER, WHICH THE EMPLOYER DISPUTED

The Court explained: “In his complaint, Mr. Shapiro lodged nine counts against the defendants, five of which are on appeal before us.”  Three of them involve ESI issues.  Id. at *7. The Court wrote:

Counts III, V, and VI (Mr. Shapiro’s “email counts”) pertain to Mr. Shapiro’s claim that after his termination, HHI and the individual defendants wrongfully accessed his personal email account. In his complaint, Mr. Shapiro alleged that about a year after his termination, he was made aware that notifications for emails to his personal email account continued to pop up on HHI computers. He claimed that he had logged into his personal email account on the HHI computers when he was employed, but he said he logged out every time. Based on these facts, an affidavit from IT Director Mr. Hughey, and an investigation by a technology consultant, Mr. Shapiro alleged that each of the individual defendants (and thus HHI, since they were acting in their official capacities) had accessed his emails unlawfully. He alleged that by doing so, they invaded his privacy (intrusion upon seclusion), and violated the Stored Electronic Communications Act, see Md. Code, Cts. & Jud. Proc. (“CJP”) §§ 10-4A-01 & 10-4A-08, as well as the Maryland Wiretapping and Electronic Surveillance Act (the “Wiretap Act”), see Md. Code, CJP §§ 10-401, 10-402, & 10-410.

Id. at *7.

The Court explained HHI’s defense: “Regarding Mr. Shapiro’s email counts, HHI argued that the laws Mr. Shapiro cited would require unauthorized access to his emails, and Mr. Shapiro granted HHI authority to view his emails by logging onto his personal email account on HHI computers and by virtue of the Employee Handbook. HHI explained that when Mr. Shapiro was employed at HHI, he asked Mr. Hughey [HHI’s technology employee] to help him add his personal Gmail account to his work computers. Mr. Hughey said in an affidavit (offered into evidence by both HHI and Mr. Shapiro) that he mapped Mr. Shapiro’s email account onto two HHI computers. Mr. Hughey explained that through this method, once Mr. Shapiro inputted his password the first time, Mr. Shapiro’s Gmail account was downloaded to and stored on the configured computers.”

PLAINTIFF COMMINGLED HIS PERSONAL EMAIL WITH DEFENDANT’S

The Court provided additional details about the commingling of personal and company email.  Mr. Shapiro used both HHI’s computers and network.  Id. at *5.  The Court added:

The technology consultant, referred to infra, explained that because Gmail is cloud-based, typically when someone logs into their email on a computer, the emails are not stored or managed on that computer. Rather, the emails are stored and managed on a remote Gmail server, and the user needs an internet connection to access them. By mapping Mr. Shapiro’s account onto the computers, as Mr. Hughey says he did, a list of the emails in the account’s inbox would have been stored on the computers (in addition to the typical Gmail server) and could be readily downloaded to the computers upon clicking them.

Id. at n. 23.

The Court wrote:  “Mr. Hughey explained that through this method, once Mr. Shapiro inputted his password the first time, Mr. Shapiro’s Gmail account was downloaded to and stored on the configured computers.”  Id. at *8.

The Court added: “IMAP, which is the protocol Mr. Hughey claims he used, would have stored Mr. Shapiro’s emails on an HHI server, in addition to the Gmail server on which they are normally stored. When emails are mapped onto another server using the IMAP protocol, the user can view and edit their emails even when they are not connected to the internet. Conversely, if Mr. Shapiro had just logged in and out each time he viewed his email, his emails would have only been stored on the Gmail server and not the HHI server.”  Id. at n. 34.

There was, however, disagreement.  Mr. Shapiro “disputed the process Mr. Hughey set forth; instead, he contended that the account was not stored on the HHI computers because he still had to input his password every time he opened his Gmail account.”  Id. at *9.

POST-TERMINATION EVENTS

The plot then thickens based on post-termination events.  The Court wrote:

After Mr. Hughey helped Mr. Shapiro, HHI said that notifications about emails to Mr. Shapiro’s personal account would pop up on the two HHI computers. These notifications continued to pop up after Mr. Shapiro’s termination. After employees complained about the notifications, Mr. Hughey deleted Mr. Shapiro’s account from the server. Before doing so, he created a backup of the account by downloading it to a password-protected hard drive. He said he decided to create the backup in his capacity as IT Director because it was part of his standard operating procedure, and he knew HHI “was in some degree of difficulty with Mr. Shapiro … [and he] felt it was prudent to back up that information prior to deleting it in case it was needed later.” HHI has not been able to find the hard drive containing Mr. Shapiro’s emails. [emphasis added].

However, HHI essentially argued that the missing ESI was irrelevant:

HHI argued that Mr. Shapiro had not introduced any evidence that anyone at HHI unlawfully accessed and read his post-termination emails. It noted that Mr. Shapiro even testified during depositions that he could not identify a single email that anyone read. HHI argued that the only evidence of access was Mr. Hughey’s access to delete the account mapping and create a backup; however, it contended that Mr. Hughey’s access could not be unlawful because “[t]he argument by [Mr.] Shapiro that he could create the access and not permit [HHI] to remove that access without liability is sheer nonsense.” Because Mr. Shapiro had not offered any evidence of unlawful access besides his own speculation, HHI argued the court should grant its motion for summary judgment.

HHI backed up its argument with evidence:

HHI introduced affidavits of a technology consultant to support its assertion that its only access of Mr. Shapiro’s personal email account was Mr. Hughey’s access to download and delete it. The technology consultant examined Mr. Shapiro’s email account and its activity after Mr. Shapiro was terminated. He found that Mr. Shapiro’s email had been accessed once following his termination, and he concluded that the access lined up with when Mr. Hughey deleted the account off the HHI computers. The technology consultant was not identified as an expert for either side, but, without objection from Mr. Shapiro, HHI offered the consultant’s affidavits in support of its motion for summary judgment.

HHI also relied on its employee handbook to support its argument that post-termination access, if any, was permissible:

Moreover, HHI argued that pursuant to the Employee Handbook, employees had no reasonable expectation of privacy regarding any information or materials stored in HHI computers. Further, employees agreed that if they used HHI computers for personal purposes, they did so at their own risk.

The Employee Handbook contained standard boilerplate described at page *9 of the Court’s opinion.

THE UNDISPUTED FACTS

The trial court found that there was no evidence that defendants had opened any of the files, and held that opening the files was a fundamental element of the three claims.  Thus, it granted summary judgment.

The Appellate Court recited the facts relating to the emails:

Beginning with the undisputed facts, Mr. Shapiro admitted in his pleadings that when he was employed at HHI, he used HHI computers to check his personal email account. At the relevant time, under the 2016 HHI Employee Handbook, employees agreed that they had no expectation of privacy in their work computers, and HHI retained the right to review and inspect employee computers and emails. Mr. Hughey helped Mr. Shapiro set up his personal email account on the HHI computers—although precisely how he did this is disputed. When Mr. Shapiro was terminated, both parties agree that his email notifications continued to appear on the HHI computers. To remedy this problem, Mr. Hughey deleted Mr. Shapiro’s personal email account from the computers, but before doing so, he made a backup on a hard drive. He said that he did this as standard operating procedure and because he knew HHI was in some litigation with Mr. Shapiro so he thought it would be prudent.[2] HHI said that it could not find this hard drive. Mr. Shapiro only contests alleged post-termination access of his emails; he does not contest any accessing of his emails that may have occurred during his employment.

Id. at *15 (emphasis added).

PLAINTIFF’S LACK OF EVIDENCE

Mr. Shapiro asserted that the facts were in dispute.  He claimed that “other employees did read his post-termination emails before Mr. Hughey deleted the account from the HHI computers. He also contends that HHI employees read his emails using the backup Mr. Hughey made.”  Id. at *15.

The Court wrote that: “However, [Mr. Shapiro] does not offer evidence to support these contentions. Instead, he urges that HHI’s employee witnesses are not credible and had motivations to lie about whether they viewed his emails.”  Id. at *15.

That argument failed.  The Court wrote:

Beginning with whether anyone at HHI read Mr. Shapiro’s emails, there is no genuine dispute regarding this fact. HHI has produced sworn statements from each of the individual defendants that none of them ever opened, looked at, or read Mr. Shapiro’s emails. Mr. Shapiro offers no evidence to the contrary. During a deposition, HHI asked Mr. Shapiro, “I’m trying to find out whether you can identify whether anybody has used any of that information that was contained in those e-mails?” Mr. Shapiro responded, “I don’t have any facts. I can only speculate.” (Emphasis added). During the deposition, Mr. Shapiro based his speculation on assumptions about what he believed HHI employees would do, saying, “I think it’s safe to say that human nature would have had those individuals reading it.” But Mr. Shapiro’s speculation does not create a material dispute of fact as to whether HHI employees accessed his email, other than Mr. Hughey’s access….  Therefore, it is undisputed that HHI did not access Mr. Shapiro’s post-termination emails, besides when Mr. Hughey downloaded and deleted the account.

Id. at *16.  “Speculation” does not carry the burden of production.  See, e.g., Where Producing Party Represents That It Fulfilled Its Duty to Produce, a Motion to Compel Additional Production Cannot Be Based on Speculation (Jul. 27, 2021); There Is a Difference Between Relevance for Discovery and Relevance for Spoliation Sanctions (Aug. 11, 2021).  “Speculation is never a substitute for proof, and merely insisting that there must be more information than has been produced in discovery is not adequate…. ‘Mere suspicion or speculation that an opposing party may be withholding discoverable information is insufficient.’.…  Here, as in any other context, merely ‘saying so does not make it so.’”  Discovery is the Lawyer’s X-Ray; However, an MRI May Not Be Reasonable (Sep. 4, 2024), quoting Khan v. County of Cook, 2024 WL 3984263, at *6 (N.D. Ill. Aug. 29, 2024).

In short, the Appellate Court squarely stated that Mr. Shapiro “does not offer evidence” to support his contention that HHI employees read his emails on the active HHI system or “using the backup,” after he was terminated.  Id. at *15.  In fact, it reiterated that he “has offered no evidence that anybody opened… a single email from HHI’s computers or the hard drive.”  Id. at *17.

However, I ask whether it is supportable to conclude that there was “no evidence” and only “speculation” to support Mr. Shapiro.  Like Fed.R.Evid. 1004, Md. Rule 5-1004 permits proof of the contents of a writing or recording “by evidence other than the original,” if: the original is lost or destroyed; not obtainable; or, the party possessing it was put on notice that it would be the subject of proof at trial and does not produce it.

The Hyperheal Hyperbarics Court’s decision states that Mr. Shapiro “contended that sometimes when he logged onto his account even after his termination, certain emails were marked read even though he had never read them.”  Id. at *9 (emphasis added).  Concededly, he did not provide specifics, but this was some evidence supporting his claim.

And, as to the hard drive, it seems difficult to fault plaintiff for offering no evidence about a hard drive that defendant failed to preserve.  See Defendant Unsuccessfully Argued that Plaintiff Could Not Show That Data on Cell Phone That Defendant Destroyed Was Relevant (Aug. 18, 2021), citing McCoy v. Transdev Svc., Inc., 2021 WL 1215770 (D. Md. Mar. 31, 2021).

APPLICATION OF THE LAW TO THE UNDISPUTED FACTS

The Court stated: “Having determined that there was no genuine dispute concerning whether anyone at HHI read Mr. Shapiro’s emails (they didn’t), we next apply the law.”  Id. at *17.

Privacy and Wiretapping Claims Fail

That undisputed fact defeated the invasion of privacy and wiretapping claims.  As to the former, the Court explained:

Whether Mr. Shapiro’s emails were on HHI’s computers, or downloaded onto a hard drive, there was no evidence that anyone from HHI read the emails. Simply possessing the emails on the HHI computers does not mean that HHI’s employees intruded upon them. Nor does downloading the emails onto a hard drive. Indeed, Mr. Shapiro has offered no evidence that anybody opened (and thus intruded upon) a single email from HHI’s computers or the hard drive. Further, without identifying any emails that anybody read, Mr. Shapiro cannot prove that any alleged intrusion would be highly offensive to a reasonable person.

Id.  at *17. Further, because storing emails, and downloading stored emails, does not “intercept” them, there is no wiretapping. Id. at *17-18.

Stored Communications Act Survives Due to Employer’s Downloading

However, the Court held that “the undisputed fact that Mr. Hughey downloaded Mr. Shapiro’s email account precludes summary judgment in favor of HHI on Mr. Shapiro’s SECA count as a matter of law.”  Id. at *17 (emphasis added).

On that count, the Court wrote: “The circuit court was incorrect, however, in granting HHI summary judgment on Mr. Shapiro’s third email count because a violation of the law at issue does not require HHI to have read Mr. Shapiro’s emails. Instead, the statute targets unauthorized access to an email server, which is what Mr. Shapiro alleges Mr. Hughey did by downloading Mr. Shapiro’s emails onto a hard drive.”  Id. at *18.

The Hyperheal Hyperbarics Court concluded that the SCA “does not require that HHI have read Mr. Shapiro’s post-termination emails. Instead, it requires that HHI ‘obtain, alter, or prevent authorized access’ by ‘intentionally accessing without authorization’ or ‘exceeding authorization to access a facility through which an electronic communication service is provided.’” Id. at *18; but cf. Van Buren v. United States, 593 U.S. 374, 396 (2021)(“In sum, an individual ‘exceeds authorized access’ when he accesses a computer with authorization but then obtains information located in particular areas of the computer—such as files, folders, or databases—that are off limits to him.”).

The Hyperheal Hyperbarics Court held that deletion of Mr. Shaprio’s IMAP emails from the HHI servers did not violate the SCA.  Id.

Downloading the personal emails to password-protected hard drive, however, was different. The Court wrote that “it was wrong to conclude that Mr. Hughey’s download of the account onto the hard drive did not qualify as altering or obtaining authorized access.”  Id. at 18-19.

While Mr. Shapiro may have authorized HHI’s access to his Gmail account by logging onto it, Mr. Hughey’s downloading the entirety of Mr. Shapiro’s email account onto a hard drive, i.e., a new device that HHI could access (and that Mr. Hughey thought it prudent to retain), amounted to access that exceeded Mr. Shapiro’s authorization. Therefore, HHI was not entitled to summary judgment on the final email count because the circuit court was incorrect in concluding that a download of Mr. Shapiro’s email account would not meet the [Maryland Stored Communication] Act’s access requirements as a matter of law.

Id. at *19.

In short, the Hyperheal Hyperbarics Court held that, when HHI downloaded a copy of Mr. Shapiro’s personal emails from HHI’s information technology system to an external storage device, so that it could delete the ESI from its active system to stop email “pop up” notices to HHI’s current employees, HHI may have violated Maryland’s Stored Communications Act. In the Court’s view, the downloading was either access without authorization or exceeding authorization under that statute. Id. at *34.  The Court reversed the grant of summary judgment on that issue.  It also reversed on other issues not relating to electronically stored information.

SOME QUESTIONS

Downloading

I have some questions about that holding. Deletion occurred after Mr. Hugely knew HHI was in some litigation with Mr. Shapiro.  That knowledge likely triggered a common-law duty to preserve that ESI.  Downloading a copy, if done forensically, is one reasonable preservation method.  In fact, deletion without preservation would, if the deleted information was relevant and proportional, violate the duty to preserve.

That put HHI on the horns of a dilemma.  If it left Mr. Shapiro’s personal email on its system, the “pop ups” might permit other employees to access his personal email, supporting plaintiff’s intrusion upon seclusion and wiretap claims.  If HHI deleted the personal email without downloading it, it risked spoliation sanctions.  However, if it downloaded that email to fulfill its common law preservation duty, it ran the risk of being held in violation of Maryland’s Stored Communications Act.

Further, it appears that the holding may be inconsistent with Van Buren, 593 U.S. at 396 (interpreting federal Stored Communications Act).

Spoliation

Additionally, Mr. Shapiro alleged spoliation because the hard drive containing his downloaded personal emails had gone missing.  Id. at nn. 25, 32.  The Court’s analysis of the spoliation claim was set out in n. 32:

Mr. Shapiro also attempts to argue that the doctrine of spoliation applies. He says that under that doctrine, “a party should not be allowed to support its claims or defenses with physical evidence that it has destroyed to the detriment of its opponent.” Cumberland Ins. Grp. v. Delmarva Power, 226 Md. App. 691, 696-97, 130 A.3d 1183 (2016). Although we are not sure what production of the hard drive would prove, since Mr. Hughey already admitted to creating it, Mr. Shapiro has failed to prove an act of destruction or intent to destroy it, both required elements for spoliation. See Klupt v. Krongard, 126 Md. App. 179, 199, 728 A.2d 727 (1999). Furthermore, even a favorable finding of spoliation, that HHI destroyed the hard drive with the emails, cannot defeat the fact that Mr. Shapiro has produced no evidence that anyone read the emails. [emphasis added].

The Appeals Court did not cite Maryland Rule 2-433(b)(sanctions) which was amended by the Maryland Supreme Court and became effective this year. The Rule states that: “If electronically stored information that should have been preserved in the reasonable anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it and the information cannot be restored or replaced through additional discovery, the court, upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice.”

In my view, Cumberland and Klupt’s requirement of proof of “an act of destruction or intent to destroy” has been superseded by the Rule. Instead, the issue is whether HHI failed to take reasonable steps to preserve the hard drive containing the emails.  While the circumstances under which the hard drive went missing were not explained, it does not seem far-fetched to conclude that reasonable steps were not taken.  For example, there is no mention of HHI have sent a litigation hold notice or taken any other steps to implement a litigation hold.

It seems reasonable to conclude that the Court would have found “no prejudice” here. However, the Court stated that it “not sure what production of the hard drive would prove….”  I wonder, for example, if a forensic argument could have been presented that “last accessed”  or “last modified” metadata on email attachments that might have been saved to the hard drive could have shown whether HHI opened email attachments after the date of termination?  Or, whether a  forensic examination of the hard drive might have disclosed relevant facts?  In any event, I leave forensics to forensic experts, and I am not one of them.

Maryland’s new sanctions rule textually differs from Fed.R.Civ.P. 37(e).  See Maryland Supreme Court Rejects Proposed Sanctions Rule Paralleling Fed.R.Civ.P. 37(e) (Nov. 3, 2023).  Under Fed.R.Civ.P. 37(e)(1), curative sanctions would have been available on a finding of prejudice. Under Fed.R.Civ.P. 37(e)(2), if a court found “intent to deprive,” prejudice could have been presumed.

However, under pre-amendment Maryland common law, which was not raised in Hyperheal Hyperbarics: “The destruction or alteration of evidence by a party gives rise to inferences or presumptions unfavorable to the spoliator, the nature of the inference being dependent upon the intent or motivation of the party. Unexplained and intentional destruction of evidence by a litigant gives rise to an inference that the evidence would have been unfavorable to his cause, but would not in itself amount to substantive proof of a fact essential to his opponent’s cause.”  Anderson v. Litzenberg, 115 Md. App. 549, 560–61 (1997).

Here, HHI, with knowledge of litigation or disputes with Mr. Shapiro, downloaded the emails to a hard drive because it deemed it prudent to do so.  HHI downloaded it “in case it was needed later.”  It would likely have cost nothing to preserve that ESI.  However, HHI failed to do so and there is no explanation for that failure.  Further, there is no indication that HHI imposed a litigation hold.  Is that sufficient to create an inference?[3]

***

Two other ESI issues in Hyperheal Hyperbarics are worth noting.

The Two-Party Consent Issue

First, Mr. Shapiro argued that, because Maryland is a two-party consent state, unless both parties to his email consented to review by HHI, Mr. Shapiro’s consent was not valid.  See n. 35.  Under, Md. Code, CJP § 10-402(c)(3), it is unlawful to intercept an electronic communication absent consent of all of the parties to it.  Mr. Shapiro argued that, even assuming that he consented, “the people whom he was emailing did not.”  Id. at n. 24.

The Hyperheal Hyperbarics Court rejected this argument because there was no evidence that anyone had read the emails.  “Thus, there are no parties besides Mr. Shapiro who would have needed to consent to the access because none of his conversations were accessed.”  Id. at n. 35.

This leaves open the question of whether the two-party consent argument would have succeeded if HHI had read any of Mr. Shapiro’s personal emails.  In short, if Mr. Shapiro sent an email to Ms. XYZ, and if HHI accessed and read it, did that action violate the two-party consent rule because Ms. XYZ had not consented to HHI’s access?

Gap in the Employee Handbook?

Second, under the provisions of the HHI handbook at issue, the Court stated that there is a post-termination limit to an employee’s consent to employer access, writing: “[T]he Employee Handbook could not apply to emails Mr. Shapiro received after he was terminated, which were the only ones Mr. Shapiro contested. Mr. Shapiro’s employment agreement explicitly stated that it would terminate if HHI terminated Mr. Shapiro…. Further, the Employee Handbook explicitly only applied to ‘employees’ of HHI….” Id. at n. 37.  The Court explained:

HHI has not identified any provision of the employment agreement that would suggest the Handbook’s “no privacy” notice survives an employee’s termination. When HHI terminated Mr. Shapiro, Mr. Shapiro was no longer an employee, and HHI lost any right it may have had to view his future emails.

Id. at n. 37.

TAKE-AWAYS

Employers may wish to review their information governance, personal use, and employee handbooks in light of this decision.[4]

Here, HHI engaged in self-collection and self-preservation.  In order to be defensible, self-preservation or self-collection must employ rigorous protocols.  Self-Collection, Discovery About Discovery, and Curative Sanctions (Sep. 22, 2024);  “Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System (Jan. 19, 2024).

____

[1] Mr. Shapiro wore several “hats” at different times at HHI.  One of those “hats” was that of an employee and, in this blog, I use the term “employee.”  See id. at *5.

[2] There is no mention of a litigation hold notice.  See Sanctions for: Failure to Impose a Litigation Hold; and, for Removing Zoo Animals After Notice of Inspection and Without Cooperative Communications (Nov. 28, 2021)(“In the absence of any effort to preserve or gather responsive electronic information, as well as affirmative evidence that at least some relevant electronic evidence was affirmatively destroyed during the pendency of this case, some sanction is appropriate.”), quoting Collins v. Tri-State Zoological Park of Western MD, Inc., 2021 WL 5416533 (D. Md. Nov. 19, 2021).

[3] All reasonable inferences are to be drawn in favor of a party opposing summary judgment.  Id. at *10, 15.

[4] Westlaw states that the opinion has not yet been released for publication and is subject to revision or withdrawal.