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Cell Phones, Videos, WhatsApp and The Spoliation of Evidence

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  • Posted on: Sep 14 2020

Under CPLR § 3101, New York State’s procedural rule governing disclosure of documents and information, “there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” The rule applies to parties and non-parties alike.

A question often arises as to whether the documents and information at issue are “material and necessary” (often interpreted as relevant) to the action. Courts in New York interpret the phrase liberally. As such, they require disclosure of any facts bearing on the controversy that will assist preparation for trial by sharpening the issues and reducing delay and prolixity. As the Court of Appeals explained, the test is one of usefulness and reason. Allen v. Crowell-Collier Publishing, 21 N.Y.2d 403 (1968).

Notwithstanding, CPLR § 3101 establishes three categories of materials protected from disclosure. First, the statute excludes from disclosure privileged matter. Privileged matter includes, but is not limited to, self-incriminating matter, communications between an attorney and client, communications between spouses, communications between doctor and patient and secret grand jury information. This is an absolute immunity. Second, the statute excludes from attorney work product materials. Like privileged matter, this is an absolute immunity. Finally, the statute excludes from disclosure trial preparation materials. Such materials are subject to disclosure on a showing of substantial need and undue hardship.

Preservation of documents and information is a key component of the disclosure regime. After all, a person or entity cannot disclose documents and information material and necessary to an action if such evidence is not preserved. 

The duty to preserve evidence is a broad one. It requires preservation of materials known, or reasonably known, to be relevant to the action. And it requires preservation of documents and material that are reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, and/or is the subject of a pending discovery request. 

The duty to preserve exists independent of any notification or instruction to preserve from the opposing party. It applies to corporations and individuals. Notably, attorneys have a duty to be familiar with their client’s document retention policies and protocols to ensure that all sources of relevant information are discovered.

The duty to preserve documents and information arises during litigation and when a party reasonably anticipates litigation. Thus, the duty to preserve is triggered by: service of a complaint; receipt of a preservation of evidence demand letter; receipt of a discovery demand requesting particular documents and information; and written correspondence or oral communication from an opposing party or a third party or an employee indicating that litigation is anticipated. 

When a party is the plaintiff, the duty to preserve is triggered when that person or entity learns of facts that make it probable that he/she/it will pursue litigation against another and has information that is relevant to any potential defense.

It is important to note that the duty to preserve does not require an obligation to maintain every piece of paper and every document. Rather, the duty requires a party to act in good faith and take reasonable steps to preserve documents and information. 

Relevant to today’s article, the duty to preserve includes electronically stored information (“ESI”). ESI includes: (a) materials stored on personal computers, CD-ROM’s, external hard drives, flash drives, servers, and cell phones; (b) email accounts like “Gmail” or “Yahoo”; (c) social networking sites like “Facebook” or “Linked In”; and (d) handheld devices. ESI also includes electronic communications, such as text messages, emails, recorded conversations, information stored on apps, and the like. 

Where evidence, including ESI, is destroyed when it should have been preserved, a party may be guilty of spoliation. A party may seek sanctions for the spoliation of evidence by showing that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense. Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 N.Y.3d 543, 547 (2015), quoting VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33, 45 (1st Dept. 2012); see also Squillacioti v. Independent Grp. Home Living Program, Inc., 167 A.D.3d 673 (2d Dept. 2018).

Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed documents is presumed. Pegasus, 26 N.Y.3d at 547. If, however, the evidence was destroyed negligently, the moving party bears the burden to establish that the evidence was relevant to its claims or defenses. Id. at 547-548. Trial courts may, in the exercise of discretion, impose sanctions to provide relief to the affected party, including: (a) preclusion of evidence favorable to the spoliating party, (b) awarding costs associated with obtaining replacement evidence, or (c) employing an adverse inference instruction at trial. Id. at 551, citing CPLR § 3126 (“If any party … refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed … the court may make such orders with regard to the failure or refusal as are just”).

In addition, the trial court can strike the pleading of the spoliating party. Striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct and, in order to impose such a sanction, the court “will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness.”  Squillacioti, 167 A.D.3d at 675 (citations omitted). However, “where the moving party has not been deprived of the ability to establish his or her case or defense, a less severe sanction is appropriate.” Id. (citations omitted). “Where evidence has been found to have been negligently destroyed, adverse inference charges have been found to be appropriate.” Id.; see also Pegasus, 26 N.Y.3d at 554.

In Carey v. Shakhnazarian, 2020 N.Y. Slip Op. 51040(U) (Sup. Ct., N.Y. County Sept. 11, 2020) (here), the Court addressed the foregoing principles in granting a motion for sanctions due to the spoliation of ESI evidence.

Carey v. Shakhnazarian

Background

Plaintiff, Mariah Carey, commenced the action against defendant, Lianna Shakhnazarian, plaintiff’s former executive assistant, claiming that defendant breached a non-disclosure agreement (“NDA”) that defendant signed by, among other things, making unauthorized video recordings and disseminating confidential information to the Daily Mail. In connection with discovery proceedings, plaintiff served two requests for production of documents. In both sets of requests, plaintiff demanded the disclosure of documents from March 13, 2015 to the present.

Among the materials requested were those stored on defendant’s cellphone – that is, the cellphone that she had been using since early 2018 (the “2018 Cellphone”). According to the Court, defendant did not search the 2018 Cellphone for responsive documents. At her deposition, defendant denied having ever backed up any of the documents from her 2018 Cellphone and said that she was not aware if anything was automatically saved to the iCloud. Defendant also claimed that in August 2019, she accidentally spilled water on the 2018 Cellphone, rendering it inoperable. She did not deny, noted the Court, that she failed to take any measures to recover the documents and communications on the device. Instead, defendant gave the 2018 Cellphone to her boyfriend to see if she could get any money toward a new phone by trading it in. She could not, however, recall the name or location of the store where the phone was surrendered. Relevant to the action, defendant acknowledged that she had deleted WhatsApp messages that she deemed “unnecessary,” but denied deleting any WhatsApp messages since the time when she began contemplating litigation against plaintiff.

In addition, although defendant represented that no other recordings were made or disseminated, forensic imaging of her cellphone, conducted after the motion for disclosure sanctions was filed, revealed a fourth recording that had not previously been disclosed. The forensic imaging report showed that defendant sent or attempted to send this fourth recording to a third party, but that she subsequently “unsent” the video. Forensic imaging also revealed that defendant had saved copies of the exact documents, images, and videos that were leaked to the Daily Mail, including documents relating to plaintiff’s medical treatment and private photos and videos, evidence that she previously denied having in response to plaintiff’s discovery requests.

Moreover, the forensic imaging revealed that, just before defendant sued plaintiff in California for unpaid overtime and other employment related claims, defendant sent herself a significant volume of confidential information, including the documents, images, and videos that were leaked to the Daily Mail. The forensic imaging further established that the 2018 Cellphone was enabled to be backed up to the iCloud. Finally, although defendant previously represented that she only had one email address, the forensic imaging established that she used two other email accounts: an iCloud account (the “iCloud Account”) and a Gmail account (the “Gmail Account”), both of which, noted the Court, she failed to search for responsive documents.

The Court’s Decision

The Court held that defendant had a duty to preserve the ESI on the 2018 Cellphone as early as October 16, 2017, when she sent WhatsApp messages to plaintiff’s former “managing executive,” asking for an attorney recommendation and stating that she “want[ed] to build my case,” against plaintiff, and as late as January 16, 2019, when the New York lawsuit was filed. Slip Op. at *5. As to the former, the Court explained that defendant “reasonably anticipated litigation with [plaintiff] and therefore had a duty to preserve evidence as of that date.” Id. Thus, defendant’s “destruction of at least two video recordings on October 20, 2017 and subsequent deletion of WhatsApp messages constitute[d] spoliation of evidence.” Id. (footnote omitted). As to the latter, the duty to preserve was triggered by the filing of the lawsuit. The Court explained that by “discard[ing] the 2018 Cellphone approximately seven months later in August 2019 without making any effort to preserve the documents and communications that the 2018 Cellphone contained,” defendant’s conduct “constitute[d] spoliation.” Id. The Court found that “credible evidence support[ed] a finding that [defendant’s] conduct ha[d] been willful, intentional, and contumacious.” Id. As such, “[t]he relevance of the destroyed evidence [was] therefore presumed.” Id. (citing Pegasus, 26 N.Y.3d at 547).

The Court also held that plaintiff had “met her burden of establishing that the destroyed evidence was relevant to her claims.” Id. “Critically,” said the Court, “this is a dispute about [defendant’s] alleged breach of the NDA by taking and disseminating unauthorized video and audio recordings, pictures, and communications and disclosing confidential information to various persons, including the Daily Mail.” Id. As such, “[t]he destroyed videos were material and necessary to establish the private and invasive nature of the recordings and were the objective record of what [defendant] recorded.” Id.  

In addition, the Court found that the deleted WhatsApp messages were relevant because the objectivity and creditability of the persons who sent and received the messages were at issue in this case and “the deleted messages may have revealed additional information regarding [defendant’s] recording and sharing of confidential information in violation of the NDA, including whether she shared any recordings with any other third parties.” Id. 

The Court concluded that defendant’s “destruction of messages and videos during the critical time when her relationship with [plaintiff] and her staff was clearly deteriorating constitutes, at best, gross negligence …, and, at worst, willful and contumacious conduct.” Id. (citation omitted). The Court also concluded that “trading in her cellphone without taking any measures to save the videos, messages, and other data after this lawsuit was filed, when [defendant] had an undeniable duty to preserve evidence, was grossly negligent, if not intentional.” Id. (citations omitted).

Accordingly, the Court granted the motion for sanctions and held that it would “issue appropriate adverse inference instructions at trial.” Id. at *6 (citation omitted). The Court also ordered a forensic examination of defendant’s current cell phone “for any evidence of any violation of the NDA, any text messages or other documents which may have been backed up on the iCloud which may be used for impeachment purposes, and any further spoliation thereof.” Id. In addition, the Court order defendant “to pay the reasonable attorneys’ fees incurred in preparing this motion.” Id. (citing Zacharius v. Kensington Publ. Corp., 154 A.D.3d 450, 451 (1st Dept. 2017) (affirming award of attorneys’ fees and costs of reviewing evidence and preparing motion as appropriate sanction for spoliation)). 

Takeaway

In today’s modern world, so much information is kept on our cellphones and backed up to the cloud. Yet, many people simply do not realize how much of that information is stored or backed up.

The facts in Carey, as described by the Court, however, show more than a mere unawareness. To the Court, they showed an understanding that the documents and information were discoverable and retrievable. It is not surprising, therefore, that the Court granted the motion. It will be interesting to see, however, whether defendant appeals the Court’s decision and order. 

Carey also serves as a warning that nothing, or almost nothing, is irretrievable. Indeed, forensic imaging can retrieve documents and information from the cloud and electronic devices often thought to be deleted and/or discarded. Thus, the deletion of ESI or the transfer of ESI from one device to another will almost always be detected by forensic imaging professionals. 

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