How important is email communication for nearly every civil litigation? Typically, email is crucial for shedding light on disputed situations. As we have noted before, email is often candid and casual, since people still tend to treat email as a less formal means of communication than a formal business letter. This aspect of email makes it a great source of reliable evidence.
However, because email is a significant source of evidence, it is also a prime target for evidentiary manipulation. Some of the below listed cases demonstrate situations where the parties have altered or fabricated email messages. This raises the question of how such alterations or fabrications are uncovered? By requesting production of email in native file format with metadata, this egregious behavior can be exposed. In a recent opinion from February 2017, included in the list below, a party fabricated an email, resulting in the dismissal of the party’s $280 million counter-claim.
Here’s an update of the latest case law across the nation from the past four months regarding emails in native file format:
- Flextronics International, USA, Inc. v. Sparkling Drink Systems Innovation Center Ltd. et. al., Case No. 15-4904 (N.D. Ill., Feb. 9, 2017). After an email was produced by Defendants that purportedly altered the disputed agreement, the court ordered the email produced in native file format. Defendants could not produce the email in native format, and a computer forensics expert subsequently concluded the suspect email was fabricated. Therefore, the court found such conduct to be willful and granted a terminating sanction, dismissing a counter-claim of $280 million with prejudice.
- The Patriot Group, LLC v. Steven C. Fustolo (In re Fustolo), Case No. 13-12692, Adv. No. 14-1193 (Bankr. D. Mass., Jan. 11, 2017). After misrepresenting the email account’s policy regarding deletions, asserting a 5th Amendment privilege against self-incrimination and finally claiming his laptop was lost, Defendant in this adversary bankruptcy proceeding was denied a Chapter 7 discharge.
- Singh et. al. v. Hancock Natural Resources Group, Inc. et. al., Case No. 15-1435 (E.D. Cal., Dec. 29, 2016). Plaintiff was ordered to produce emails in TIFF format with metadata. Defendant had requested this from the beginning, and Plaintiff only produced a few emails with metadata. Defendant pointed out some inconsistencies with the emails between Plaintiff and Defendant versions. The court ordered that Plaintiff must produce the original native file emails with metadata to shed light on such inconsistencies.
- Archer et. al. v. York City School District, et. al., Case No. 13-2826 (M.D. Pa., Dec. 28, 2016). Defendant school district prevailed against a motion for spoliation of emails of a retired assistant school superintendent. Defendant was successful in arguing the email account was deleted after 90 days of his retirement, per school policy, which occurred over a year before litigation commenced. The court found the school district lacked the necessary intent for spoliation sanctions.
- Lifetouch National School Studios, Inc. v. Roles, Case No. 15-234 (W.D. P.A., Dec. 15, 2016). The court held emails in native format must be produced, since such request was not unreasonable given that the parties had already agreed to produce ESI in native format in the Rule 26(f) report. The court further found such order warranted since one email seemed to have been altered. Attorney fees were awarded to the prevailing party for the Motion to Compel.
- Cohn et. al. v. Guaranteed Rate, Inc., Case No. 14-9369 (N.D. Ill., Dec. 8, 2016). In this business tort case, Plaintiff admitted she deleted her email account during the relevant time period and after the duty to preserve ESI arose. In addition to deleting emails herself, she also had employees delete her emails. This bad faith conduct warranted sanctions, although she escaped terminating sanctions being imposed since the missing emails were able to be retrieved from other sources.
- Reed v. Kindercare Learning Centers et. al., Case No. 15-5634 (W.D. Wash., Nov. 17, 2016). Defendants failed to secure relevant email accounts prior to their destruction, and Plaintiff further alleged that searches were not even commenced until after the sanctions motion was filed. The court ordered an adverse inference instruction for Defendants’ failure to allow Plaintiff entry to the premises for inspection, however, the court did not find Defendants had the requisite intent for spoliation sanctions regarding the lost emails.
Reach Out to our Computer Forensics Experts
Need help requesting and processing large amounts of electronically stored information (ESI) and email data? Our electronic discovery experts only work for plaintiff attorneys, and we have the capability to handle complex class actions, and MDLs and international litigations. We can assist from the very beginning of the case to ensure the correct strategies are implemented from the start, or we can come in after litigation has already commenced. Reach out by calling us directly at (888) 313-4457 or via email at [email protected].