Plaintiff filed a suit against a fellow student and one of their student organizations arising from purportedly racist and homophobic Facebook messages. JPEG images capturing part, but not all, of the purported messaging between and among the students were attached by Plaintiff to his Complaint. The student organization requested all Facebook Messages in HTML format between the two students over a designated time period. As the Court explains: “Native files are those that originate from the actual application from which they were produced. They are produced in HTML or JSON format and contain metadata that can be used to certify the authenticity of the document. JSA thus sought native files for a self-evident reason: authentication of the Messages.”
Plaintiff, however, never objected nor responded to the Requests for Production.
Only after the Court had granted the student organization’s Motion to Compel and Motion for Sanctions did Plaintiff make purportedly responsive productions. First, Plaintiff presented two expert affidavits: one dated April 20, 2016, by Travis Dirr, and one executed and produced on October 30, 2020, by Graciela Rubio, both affiliated with a digital forensics firm originally called Protegga, now called Rubio Digital Forensics. Second, Plaintiff produced a forensic report from Rubio including certain electronic files recovered from his smartphone. Despite retaining Dirr in 2016, procuring his affidavit in 2016, and preserving nearly fifty megabytes of information relevant to the case with Protegga in 2016 – as well as the expert designation deadline in August 2020 – Plaintiff had never before disclosed the identity of either expert, produced the 2016 affidavit, or communicated the existence of the data preserved with the experts either to Defendant or to the Court.
Significantly, Plaintiff’s belated disclosures did not include the native Facebook message files, (i.e. proof of the alleged Messages in JSON or HTML format), as requested by Defendant and as ordered by the Court. In Defendant’s Rule 37 Motion, and in response to Plaintiff’s October 2020 production of the Dirr and Rubio affidavits with attendant ESI, Defendant submitted its own expert affidavit from Yaniv Schiff, a computer forensics expert. As Schiff explains in his affidavit: “Facebook data is the most authentic and reliable source … it is incredibly easy to create fake Facebook conversations using online tools, however it would be very difficult to fabricate a conversation on the Facebook platform itself.” Therefore, “any conversations depicted in the supposed screenshots must be validated against the Facebook data itself.”
Plaintiff did not contest these facts, nor respond to Defendant’s revised request to produce the native Facebook files. Instead, Plaintiff filed a Motion for Reconsideration, contending that: (1) Plaintiff’s October 15, 2020 and October 30, 2020 productions satisfied Defendant’s Requests for Production (and absolved Plaintiff’s previous failure to produce); (2) the requested information was previously unavailable to Plaintiff; and (3) Plaintiff cannot produce the native file Messages because they have been permanently deleted.
Granting sanctions under Rule 37, the Court discusses the significance of preserving native file social media data in the context of the Best Evidence Rule: “Plaintiffs cannot persuasively contend that they did not know or should not have known of their need to preserve the actual Messages as opposed to screenshots thereof. First, Plaintiffs, rather than appearing pro se, were represented by counsel, who could and should have apprised Plaintiffs of the Best Evidence Rule. Pursuant to Federal Rule of Evidence 1002, the so-called Best Evidence Rule provides that ‘an original writing, recording, or photograph is required to prove its contents unless these rules or a federal statute provide otherwise.’ As it is applied to ESI, FRE 1001(d) provides that ‘original’ ‘means any printout – or other output readable by sight – if it accurately reflects the information.’ Here, the screenshots will not suffice as an ‘original’ because the screenshots are not an ‘output’ that ‘accurately’ reflect the information. Only native files can ensure authenticity. Additionally, although the Best Evidence Rule allows for an original ‘photograph’ to prove the contents of the photograph, this does not mean that the screenshot here can be used to prove that Harper sent the Facebook Messages contained in the screenshots. Instead, the screenshots prove only that Edwards, Jr. took a screenshot containing what appears to be Facebook Messages – not that the Messages are authentic or that Harper indeed sent the Messages. Second, however, one need not be familiar with the Best Evidence Rule to understand that the actual Messages may be important in proving that someone sent the Messages in question and that screenshots may be insufficient to that end. That the actual Messages may be relevant to the instant litigation is self-evident. Accordingly, the Edwardses had a duty to preserve the native files, i.e., the actual alleged Facebook Messages, because plaintiffs had either actual or constructive notice as to the files’ relevance.”
The Court further observes that: “To preserve the ESI in question, Edwards, Jr. needed only to not permanently delete his Facebook account long enough to download the files in question, a step which requires only a brief series of clicks and a matter of seconds to accomplish. First, one can deactivate a Facebook account temporarily. Edwards, Jr. did not elect to temporarily deactivate his account; rather, at some point between his supposedly taking screenshots of the alleged Messages and September 2020, Edwards, Jr. permanently deleted his Facebook account, thus permanently barring access to the files in question. Clearly, Edwards, Jr.’s failure to keep his Facebook account active long enough to download the files in question constitutes a brazen failure to take reasonable steps to preserve the pertinent ESI. In fact, Edwards, Jr.’s permanent deletion of his Facebook account after the conduct in question and potentially during the midst of this litigation raises serious questions about deliberate spoliation of evidence, although JSA has not at this point met its burden to show by a preponderance of evidence such willfulness. In summary, Plaintiffs – at a bare minimum – failed to take reasonable steps to preserve the actual Facebook Messages in question and quite possibly engaged in deliberate spoliation.”
“Finally, Rule 37(e)(1) authorizes a court to ‘order measures no greater than necessary to cure the prejudice’ to a party resulting from the failure to preserve ESI. Here, the prejudice that JSA suffers from its inability to examine the Facebook data in question is the unfair imbalance between Plaintiffs’ and JSA’s ability to procure, examine, and present evidence. While Plaintiffs can offer evidence of the alleged Messages in the form of screenshots and testimony or other evidence related to the screenshots, JSA is deprived of the opportunity to authenticate and potentially rebut this evidence by relying on the Facebook data it requested. Of course, JSA may still offer expert testimony that screenshots in general can be fraudulently created with relative ease, but this is an inadequate substitute for an opportunity to examine the particular Facebook data at issue here. The Court finds that prohibiting Plaintiffs from offering any evidence of the alleged Messages effectively cures the prejudice to JSA that has resulted from Plaintiffs’ failure to preserve evidence that Plaintiffs manifestly knew or should have known was critical to this case.”
Edwards v. Junior State of America Foundation, No.19-140, 2021 WL 1600282 (E.D.Tex. April 23, 2021).
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