In a personal injury case arising out of a trucking accident, the defendant brought a Motion for Sanctions based on the alleged spoliation of electronically stored evidence, specifically plaintiff’s social media accounts.  The plaintiff objected that defendant failed to seek an informal resolution of this issue before filing the motion, and suggested that the Facebook information may yet be retrievable, if he “reactivated” his account.

Initially, the Court notes that, while the plaintiff is correct that the discovery-dispute procedures would have provided a more appropriate avenue to raise the issue, his own conduct, (as the defendant “points out perhaps too emphatically”), is much more troubling. “Litigation is not an exercise in catching one’s opponent in some technical misstep to secure advantage. It is a search for truth and justice. The procedural rules should facilitate that search, not impede it…. This Court will not abide any party or counsel’s attempt to reduce its procedures to a game of ‘Gotcha!’ Plaintiff’s response appears to be little more than an attempt to hide a substantive mountain behind a procedural molehill. If that was his intent, it has failed. Given the Court’s broad discretion to manage discovery, and the Federal Rules’ injunction that procedure should be administered to secure the just, speedy, and inexpensive determination of every action and proceeding, the Court will endeavor to resolve the discovery dispute without further delay.”

Next the Court takes up the issue of spoliation. As a threshold matter, the Court determines that the issue should be viewed through the lens of Rule 37, as opposed to the inherent powers of the Court: “Despite the defendant’s characterization, it is not clear that any evidence has been spoliated, as opposed to withheld. Defendant’s brief explains the distinction between “deactivating” and “deleting” a Facebook account…. “deactivation” primarily prevents third-party access to the Facebook account, and “reactivation” remains possible. “Deletion,” in contrast, is a much more permanent step, and it means that the account information will be erased from the site completely. SSA does not dispute that, based on the information currently available, Brown has only “deactivated” and not “deleted” his Facebook account(s)…. To the extent that court-ordered production of the material remains as a potential form of relief, Rule 37 appears to be a more natural procedure. See Fed. R. Civ. P. 37(a)(3)(B)(iv) (motion to compel production of documents). Indeed, even if plaintiff’s conduct were sufficiently willful to warrant sanctions, Rule 37 includes applicable provisions. See Fed. R. Civ. P. 37(a)(4) (evasive or incomplete responses are to be treated as failures to respond); (d) (motion for sanctions for failure to respond to request for production of documents). Finally, Rule 37(e) includes specific procedures applicable “if electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.” Fed. R. Civ. P. 37(e). Given the facts as they currently appear, SSA might have used those procedures to secure the relief it seeks.

“However, the Court, and possibly the parties, simply can’t tell from the pleadings whether information has, even allegedly, been irretrievably lost. … (‘There is no way to determine, without the account information that was originally requested in discovery, whether Brown has postings he shares with “Friends” but not with the general public, or whether he has deleted information.’). If the information has not been destroyed, but “only” withheld, Rule 37, with its attendant prerequisites, provides a more appropriate procedure. In the absence of a clear showing that information has been destroyed or significantly altered, the Motion for Spoliation Sanctions is DENIED, in part.”

At the same time:

“Although the Court disagrees with SSA’s procedural choice, the substance of its motion is spot on. Brown’s alleged conduct related to the social media discovery, which he never really disputes, is troubling. The defense of his objection to the written request is dubious, at best. Although he tries to brush off the issue as harmless, plaintiff concedes that his response was inaccurate when it was provided. The concluding contention that ‘there are appropriate procedures’ SSA could have used to gain access to the deactivated Facebook account, is particularly brazen, given that the original discovery request seems like exactly the ‘appropriate procedure,’ which Brown’s inadequate response obstructed. Even if a conference was technically required, plaintiff might have mooted the issue by producing the requested material when the motion was filed or initiating the meet-and-confer process himself. Despite his response effectively conceding that his original discovery response was defective, plaintiff still does not propose to make good his failure. In the absence of any indication that he – or perhaps more accurately his attorneys – took any of those good-faith steps, the brief’s indignation rings particularly hollow. Although the Court cannot find that any evidence has been spoliated, under the circumstances it need not wait to rectify the situation. Since plaintiff’s brief effectively concedes that his response to the written discovery request was evasive or incomplete, his objection is deemed waived. The Court, therefore, GRANTS SSA’s alternative request to compel production of the Facebook data.”

Finally, the Court turns to the conduct of plaintiff’s counsel in certifying apparently incomplete and/or misleading discovery responses: “Although the Court cannot find that spoliation sanctions are appropriate, plaintiff’s own argument exposes a deeper problem that the Court cannot ignore. The Federal Rules of Civil Procedure impose a duty on attorneys to sign discovery responses, certifying them. Certification implicitly imposes a duty upon the signing attorney to make a reasonable inquiry into the factual basis of his response, request, or objection. Plaintiff’s brief argues that his undisclosed, so-called ‘burner’ Facebook accounts did not need to be disclosed because they were available ‘in a publicly viewable location on the internet for anyone to see; identified using John Brown’s own name (and for two of the additional accounts, a picture of his face).’ If those profiles were so obvious and easy to discover, the Court must inquire why they were not revealed by plaintiff’s counsel’s required inquiry and identified notwithstanding the objection. The decision whether to impose sanctions under Rule 26(g)(3) is not discretionary, and once the court makes the factual determination that a discovery filing was signed in violation of the rule it must impose an appropriate sanction. However, the Rule only mandates sanctions when the violating certification lacks substantial justification. It may well be that such justification exists in this case. In order to determine whether the omitted disclosure of the existence of the ‘publicly viewable’ Facebook accounts was substantially justified, notwithstanding the reasonable-inquiry requirement, plaintiff and the attorney who signed the responses, R. Brian Tanner, are DIRECTED to respond within thirty days of the date of this Order and SHOW CAUSE why sanctions, pursuant to Rule 26(g)(3), should not be imposed.”

 

Brown v. SSA Atlantic, No.419-303, 2021 WL 1015891 (S.D.Ga. March 16, 2021).