No Spoliation Sanctions for “Missing” Porn on Police Computers

Just a few weeks before trial, the District Court in Orlando considered an “Emergency Motion” for spoliation sanctions against the defendant, City of Orlando, for alleged destruction of pornographic emails on  police department computers.  Floeter v. City of Orlando,2007 WL 486633 (M.D. F. Feb. 9. 2007). This is a sexual harassment and retaliation case where the plaintiff, a male undercover drug agent for the Orlando Police Department, complained about his female supervisor’s sexual advances, including viewing of x-rated emails on police department computers. Plaintiff complained, and was then, in his words, “disciplined and stripped of his job responsibilities.”

 

Plaintiff filed suit in state court on March 2, 2005, and defendant removed. As part of plaintiff’s initial disclosures, he produced sexually explicit emails that he claimed were sent to him by his supervisors at the police department.  Plaintiff was deposed on December 15, 2005, and described the pornographic emails and alleged harassment.  The next day plaintiff served his first request to produce documents, including copies of all  “sexually explicit or pornographic materials” emailed by one of his supervisors on police department computers.  Four months later, the Court ordered the City to produce these materials.

 

The City of Orlando’s “Internet Security Administrator” (who knew?) then completed a search of the ESI of the key players to the litigation in the Orlando police department. His search included the officer’s computers, the email server, and the backup tapes.  (The type or accessibility of the backup tapes involved is not described, but they were not identified as disaster recovery type backup tapes, and it is inferred that they were readily searchable.) The search by the Internet Security Administrator even included a “remote search” of the computers of some of the key players, which I presume means it was done surreptitiously.  The Administrator reported, however, that key hard drives could not be searched for various reasons, including an alleged hard drive crash and a re-imaging of another key hard drive after an upgrade to a new laptop.  The re-imaging of the old drive made it forensically impossible to search for deleted or slack files.  The re-imaging was standard procedure for a new computer replacement. The Magistrate who heard the testimony concerning these facts found the timing of the request for a new computer, resulting as it did in the complete destruction of all deleted data on the old computer, to be “certainly suspicious.”  

 

The backup tapes the Administrator searched were also porn free as to these individuals.  However, by the time of the search these tapes only went back to October 2005, seven months after suit was filed.  This is because the City recycles its tapes every three months.  Remarkably, the Court reports that:

 

There is no evidence that in-house nor outside counsel for the City ever issued a directive requiring that information which might be relevant to the issues in the case be preserved.

 

Id.at Fn.3.

  

The City reported that it had made an exhaustive search of its computers and had none of the sexually explicit or pornographic materials requested.  Next, mediation took place on August 15, 2006, which under governing rules is supposed to be completely secret. Not so here, however, as the opinion reports that plaintiff at mediation told the City he had possession of more emails that he had not shown them yet, and they were clearly sent from the police computers.  The mediation impassed, and the City promptly made its own request for emails within plaintiff’s custody supporting his claim of a hostile work environment.  The plaintiff objected arguing that since the emails requested were disclosed at mediation they were confidential and privileged as work product.

 

The City then moved to compel, and plaintiff responded cutely that the emails were already in the City’s possession.   The City replied that it had looked and had not been able to find them.  Based on this representation, on October 6, 2006, the Court ordered the plaintiff to produce the emails and the sexually explicit materials attached thereto, and moreover, taxed the plaintiff with part of the City’s costs to make the motion.  (The award was, however, a mere $150.00.)  Next the parties filed cross motions for summary judgment, and motions in limine related to the pornographic materials, and motions to seal these x-rated documents, and other final pretrial related motions then due under the scheduling order.  After these motions were completed, the plaintiff filed the mentioned “emergency motion” related to spoliation, which led to a evidentiary hearing on January 11^th and 18^th, 2007.

 

The District Court Magistrate Judge after hearing (and presumably also “seeing”) the evidence at the spoliation hearing, including the sexually explicit emails once located on the Police Department computers, noted that under Eleventh Circuit jurisdiction, it is necessary to show bad faith, that:

 

‘Mere negligence’ in losing or destroying the records is not enough for an adverse inference, as it does not sustain an inference of consciousness of a weak case. Bashir v. Amtrak, 119 F.3d 929, 931 (11^th Cir. 1997) (quoting Vick v. Tex. Emp. Comm’n, 514 F.2d 734, 737 (5^th Cir. 1975).

 

Id. at *5.

 

The Magistrate reviewed the evidence summarized above and concluded that the first element for a prima facie case for sanctions from spoliation, namely “that the missing evidence existed at one time,” had been met. Id.  The plaintiff proved that the pornographic emails had once been on the police officer’s work computers.

 

The next element of spoliation is proof that “the alleged spoliator had a duty to preserve the evidence.”  The Magistrate stated her opinion that it is still an open question in the Eleventh Circuit as to whether the “mere filing of litigation” raises a duty to preserve evidence. Id. fn. 6.  In this case, evidence was destroyed when the backup tapes were recycled and the hard drive wiped. The hard drive was cleaned when the new computer was issued, which occurred after the plaintiff’s internal complaint of harassment, but before suit was filed.  The backup tapes were recycled, and thus potentially relevant pornographic emails erased, well after the complaint was served, but before a request to produce was made. The Magistrate declined to determine whether a duty to preserve the backup tapes existed after the suit was filed, but inferred that there was no duty to preserve the old computer hard drive before the suit was filed.  The Magistrate stated she did not have to reach the duty to preserve issues because she found that the third element of spoliation was clearly not met, namely that the “evidence is crucial to the movant being able to prove its prima facie case.” Also, as mentioned, she found no bad faith, a precondition to the adverse inference sanction requested for the alleged spoliation. 

 

Although the Magistrate agreed that the pornographic emails were relevant, she did not agree that they were crucial to plaintiff’s case.  The plaintiff himself had kept “eleven sexually explicit emails” and had deposition testimony as to others.  The court held that the missing emails were cumulative, and “the trier of fact does not need to actually see these emails to understand their contents.” Id. at 6.

 

The Magistrate also noted that she found no bad faith in the post-litigation erasure of backup tapes because this was done “as part of a long-standing City practice.”  Although the Court found the timing of the supervisor’s request for a new computer “certainly suspicious,” the wiping of the hard drive of the old computer that followed was also “performed consistently with City practice,” so again no bad faith.  Id. at 7. 

 

The Court denied the motion for sanctions, including the request for an adverse inference instruction to the jury, and would not even grant plaintiff’s request for refund of the $150.00 sanction he had previously paid.  Still, the Court noted that the evidence surrounding the alleged spoliation may be admissible at trial, and the plaintiff’s counsel might be able to argue adverse inference to the jury in closing.  Note a news story appeared in local Orlando television  in December 2006 about this law suit, how it led to discovery of porn on police computers, and how five police officers faced suspension because of it.

 

 

Information Explosion and the Future of Litigation

A new law review article raises thought provoking questions about the impact of the information explosion on the practice of law, especially litigation:  Information Inflation: Can the Legal System Adapt?  13 RICH. J.L. & TECH. 10 (2007). The authors are George Paul, a partner in Lewis and Roca, and a graduate of Yale Law School (1982); and Jason Baron, a Director of Litigation at the National Archives and Records Administration, College Park, Maryland, and graduate of Boston University School of Law (1980). In a very highbrow, and some would say “far out” article, they predict that the legal system will adapt by changing in four basic areas.  I personally agree with their predictions, but suspect more adaptions than the four they articulate will be required.

The article begins by laying out the recent very rapid acceleration of information, and placing this dramatic increase in historical context.  Writing has co-evolved with civilization over the past 50 centuries or longer, during which time there has been a slow but steady increase in information as our writing technologies slowly improved.  Charted out on a graph, it would look like a gradual curve, as our writing moved from chiseled stone, to parchment, to the printing press. Then there was a significant upturn, but still a curve, much like a sine wave.  All of these forms of information are, in the author’s words, ”recorded communications . . . confined to the physical realm - frozen in time as ‘information artifacts’. ” Id. at pg. 4. 

Then, all of a sudden, about twenty years ago, the sine wave spiked straight upwards,  far up, as shown in the graph above.  The  amount of information exploded as mankind invented new and much more powerful writing technologies, including “digitization; real time computing; the microprocessor; the personal computer; e-mail; local and wide-area networks leading to the Internet; the evolution of software, which has ‘locked in’ seamless editing as an almost universal function; (and) the World Wide Web.”  Id. at pgs. 5-6. 

These new technologies allowed for an altogether different form of writing, free from all physical confines.  Now the quantity of information humankind can create is virtually unlimited.  They point out how anyone today ”can distribute thousands or even millions of identical records in an instant.” Id. pg. 8.  The authors refer to this as an “Information Ecosystem” which as a “whole exhibits an emergent behavior more than the sum of its parts.”  Id. at pg. 7.  They contend that: 

Critically for law,  such systems cannot be understood or explained by any one person. As a result, writing has now grown into something akin to a new “form of life.” Because of its long standing stasis and the importance of writing as a global technology, such a development may legitimately be said to herald a new phase of civilization.  (footnotes omitted)

The authors compare the sudden spike in information to the rapid early growth of the Universe right after the “Big Bang”.  They use the term “Inflation” in the same sense that many cosmologists use the term.  Id.  at 1.  Unlike the economic meaning of inflation, in information theory, and many cosmologies, there is no countervailing deflation or recession.  Our ESI, like the Universe itself, just keeps expanding, and there is no turning back, no downward adjustment.  No one knows whether the amount of information we store will continue to increase forever at this rate, or whether the inflation may eventually slow down, or maybe even reverse.  But we do know that, barring a major world disaster, an exponential increase of information is the most likely scenario for the rest of our lives, and so we had better learn to cope with this rapid change, and learn fast.

The authors then turn to the legal profession and consider how it is “confronting an inflationary epoch.”  Basically the problem for dispute resolution attorneys is that the vast quantities of data involved in most cases makes it impossible to find all of the evidence relevant to the case.  We are forced to settle for limited information.  To use the old parable, we are all blind men looking at an elephant, except that now the elephant keeps getting bigger and bigger.   In the paper world of just a few years ago, this was anathema to the legal profession.  Discovery was intended to ferret out all of the key facts.  We pretty much knew what we were looking for and where to find it.  We would all strive for as much certainty as possible, and would routinely review all of the written records involved in a dispute.  

Today, the word ”all” itself becomes obsolete.  In most large law suits today, the amount of ESI involved makes it impossible to gather all relevant information.  Litigators have to be satisfied with retrieving some of the relevant evidence.  To use a common analogy, you know you have a haystack to search through, but you have no real idea of the number of needles in it, if any.  You could find one or two, and you may have them all, or there could be hundreds more.  You will never know because the haystack is impossibly large.

For instance, in future suits involving actions by the current administration, the National Archives and Records Administration  (”NARA”) estimates that by January 20, 2009, it will have custody of over one hundred million emails from the George W. Bush White House alone. Id. at pg. 12.  The total number of emails in NARA custody will soon reach the one billion mark. To search through all of those emails would take a team of one hundred full time lawyers over fifty-four years.  Id.at pg. 13.  Assuming a very low billing rate of $100 per hour, the cost of review would be $2 billion. As the authors point out, email is just the beginning, new forms of writing and communication are developing that will continue the flood, such as instant messages, voice mail, web traffic, wikis and the like. Id. at pgs.14-15.

The authors predict the legal profession will necessarily have to change and adapt new strategies of practice to cope with this information inflation. Here, in a nutshell, are their four predictions:

1.  “There must be a change in culture among litigation lawyers.”  What they call the current ”game theory” behind litigation must end, and be replaced by strategic cooperation and transparency in ESI discovery and production.  Lawyers will be forced to collaborate as that will be the only way to discover enough ESI related to a dispute to adequately evaluate the client’s position. The traditional adversarial mode of discovery will not achieve that end.  As a specific example they predict what they call “virtuous cycle iterative feedback loops.’  Id. at pgs. 32-36. As I understand it, that means the parties will agree to a preliminary search method, which today is likely to be an agreed set of search terms.  The parties will then try out the agreed search on a limited data set, evaluate and share the results, and then meet again to try to refine the terms for the next search.  The next iteration of the search will incorporate the lessons learned from the last search, and so on, until the parties (or barring agreement, the court) are satisfied they have enough information to resolve the dispute (or the funds budgeted for the discovery process have been exhausted). 

2. New search technologies and software will have to be employed to get a better handle on the overall size of the haystack, and find more of the needles that lie within. The current reliance on mere keyword searches will be replaced by much more sophisticated searches employing various types of concept and contextual searches, artificial intelligence, and statistical sampling techniques.  The reliance on expensive human review will significantly diminish, and instead litigators will develop new skills and computer competence.

3.  The law will innovate and change to face the reality that all evidence cannot be searched before production, and that no one will ever know if all relevant ESI has been located, much less preserved and produced.  The law governing inadvertent disclosure of privileged information will have to change, and new more appropriate rules of waiver developed.

4. There will be a revolution in legal practice as attorneys fully incorporate the continuing advances of technology.  This “equates to perhaps the biggest skill set ever thrust upon the profession. . . Lawyers must embrace creative, technological approaches to grappling with knowledge management as information inflation continues apace.  Failure to do so will severely hamper the legal profession’s ability to meaningfully retrieve and process evidence.”  Id. at pg. 3. I only wish that the article spent more time exploring this necessary adaption; instead it is largely left to your imagination.  But then, perhaps that is part of the message.