The Duty to Preserve Continues Even After Production of Social Media

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In Faulkner v. Aero Fulfillment Services, 2020 WL 3048177 (S.D.Oh. June 8, 2020), the court held that deactivation of a LinkedIn site after it had been downloaded and produced breached the duty to preserve that ESI.  However, the sanction was limited to an admonishment due to the absence of prejudice.

The problem arose because the requesting party did not specify the form or forms of production, and the producing party only marginally indicated how it intended to produce the ESI.  Post-production, the requesting party asked for a second production in a different form; however, by that time, the LinkedIn account had been deactivated and the ESI was no longer available.

The issues presented were whether plaintiff had fulfilled her duty to produce requested ESI and, separately, whether she had breached her duty to preserve potentially responsive ESI.  The court found no violation of the duty to produce; however, it held that plaintiff had breached her duty to preserve.

There are several takeaways from Faulkner.

First, the Federal Rules of Civil Procedure permit a requesting party to specify the form or forms of production.  That is a valuable right that should not be ignored.

Second, those rules require a producing party to specify what form it intends to provide if the request is silent.

Third, once a party produces in one form, it need not produce the same ESI in another form.

Finally, and most significantly, the duty to preserve continues even after production. It is important to recognize that the duty to preserve is separate and distinct from the duty to produce.  The court wrote: “The fact that Plaintiff did not violate her duty of production in this case does not mean that her conduct was above reproach. A different provision of Rule 37 governs the ‘Failure to Preserve Electronically Stored Information.’”

The facts were simple: “Plaintiff’s counsel has submitted a Declaration explaining that following receipt of the Court’s January ruling, he obtained Ms. Faulkner’s login credentials and followed the instructions given on the LinkedIn website in order to ‘request[ ] a download of Ms. Faulkner’s account data.’ … On January 31, 2020, LinkedIn provided a hyperlink that Plaintiff used to download the ‘full data archive … in Microsoft Excel format.’ … Plaintiff produced the Excel file to Defendant, including all LinkedIn data, on February 19, 2020. However, soon after downloading her full LinkedIn account and apparently unbeknownst (at first) to counsel, Plaintiff deactivated or deleted that account.”

Defense counsel then asked for a second production in a different format.

Defense counsel had not specified the form of production.  Plaintiff’s counsel arguably specified the form in which it intended to produce the ESI.

The court wrote:

“Based on the record presented, the Court concludes that Plaintiff Faulkner initially complied with her obligation to produce the entirety of her LinkedIn account in the format in which LinkedIn produced it to her. However, when she subsequently deactivated that same account, Ms. Faulkner unquestionably violated her duty to preserve (potentially) relevant evidence. On the one hand, the harm to Defendant appears to be non-existent but on the other hand, the action cannot be easily undone. Considering all circumstances presented, the undersigned concludes that Plaintiff be admonished as a sanction. However, if the subsequent evidentiary record suggests that additional relevant evidence was erased or deleted by Plaintiff Faulkner, the Court will impose more significant sanctions.”

Fed.R.Civ.P. 34 (b)(1)(C) states that a request for production “may specify the form or forms in which electronically stored information is to be produced.”  Subsection (2)(D) states that “if no form was specified in the request–the [responding] party must state the form or forms it intends to use.”  Further, under Rule 34(b)(2)(E)(ii), “[i]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms….”  Finally, Rule 34(b)(2)(E)(iii) states: “A party need not produce the same electronically stored information in more than one form.”

Maryland Rule 2-422 is essentially similar.  Subsection (b) states that the request “may specify the form in which electronically stored information is to be produced.”  It does not contain the phrase “or forms” used in the Federal Rule.  Under Rule 2-422(c), “if no form was specified in the request… the responding party shall state the form in which it would produce the information.”  The term “would produce” does not appear materially different than the Federal phrase “intends to use.”  Rule 2-422(d) states that, “if the request does not specify a form,”  it shall be produced “in the form in which it is ordinarily maintained or in a form that is reasonably usable.”  Finally, Rule 2-422(d)(2) states: “A party need not produce the same electronically stored information in more than one form.”  A note to the Maryland Rule states: “This Rule is derived from former Rule 419 and the 1980 and 2006 versions of Fed. R. Civ. P. 34.”

The Faulkner court explained why admonishment was the appropriate sanction: “Because Plaintiff previously produced her LinkedIn account and the Defendant can show no prejudice from Plaintiff’s failure to preserve the data following production, the undersigned will admonish Plaintiff.”  However, the court made it clear that “the existence of alternate evidence is not an automatic ‘Get out of Jail Free’ card….”

ESI in MD Courts

Instead, it is merely a relevant consideration.

Rule 37(e)’s reference to restoration or replacement through additional discovery makes it clear that secondary evidence is a relevant factor.  For a more detailed discussion, see M. Berman and R. Shapiro, “The Secondary Evidence Rule in Avoidance of Spoliation Sanctions,” in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), Appendix F.

The Faulkner court’s docket entry states: “Plaintiff Faulkner is hereby ADMONISHED that her actions in deleting her LinkedIn account following production of its contents violated her duty of preservation. The Court cannot, and does not, condone such action. Her actions were certainly inappropriate and will be met with harsh consequences should such activity transpire in the future….”  The court denied the request for an adverse jury instruction “without prejudice to renew before the trial judge should further proceedings establish greater relevance of the LinkedIn account.”  Dkt. No. 22 (June 8, 2020).

A colorable argument could be presented that the duty to preserve was not violated.  According to the court, the downloading attorney followed the LinkedIn process to download the “full data archive” in Excel form.  Defendant, having failed to specify the form of production in its request, then requested screenshots or .html files.

The court determined that plaintiff had produced the “entirety” of her LinkedIn account in the form it had been provided by the social media site.  The court wrote: “Defendant now argues that Plaintiff’s production did not include metadata. However, no metadata was requested by Defendant in its original Requests for Production, discussed in January, or included in the Court’s Minute Entry Order.”

However, despite the full production of all requested ESI, the court concluded that subsequent deactivation violated the preservation duty.

As a general matter, the duty to preserve extends to unique potentially responsive information, not to every copy of such information.  M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 149.  For example, in Zubulake, the court wrote that “anyone who anticipates being a party or is a party to a lawsuit must not destroy unique, relevant evidence that might be useful to an adversary.”  Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003)(subsequent history omitted)(emphasis added); accord Tenpenny v. Prime Now, LLC, No. 3:19-0420, 2020 WL 2062121, at *7 (M.D. Tenn. Apr. 29, 2020).

Here, if the producing party produced the entire LinkedIn account, or at least all that had been requested, one could argue that the remaining data was no longer unique.  That said, given the fact that screenshots visually differ from an Excel download, it would have been prudent, at a minimum, to preserve the original social media site.