There is More to ESI Besides Email Messages

The case of Emergency Response Specialists, Inc., v CSA Ocean Scis., Inc., is an excellent example of the challenges in civil litigation. The case is from Alabama that highlights the different types of ESI that can be relevant in a case. The case also highlights the importance of retaining collection experts and knowing phone passwords.

The first relevant opinion is by Magistrate Judge Harwell Davis, III. See, Emergency Response Specialists, Inc. v. CSA Ocean Scis., Inc. (N.D.Ala. Aug. 4, 2016, No. 2:14-cv-02214-WMA) 2016 U.S. Dist. LEXIS 113221 (Hereafter ERS 1). The second is by District Court Judge R. David Proctor, who adopted and accepted Judge Davis’ recommendations. See, (Emergency Response Specialists, Inc. v. CSA Ocean Scis., Inc. (N.D.Ala. Aug. 23, 2016, No. 2:14-cv-02214-RDP) 2016 U.S. Dist. LEXIS 112639 (Hereafter ERS 2).

Judge Davis explained that the Defendant’s president and majority shareholder had a computer crash that corrupted her email production. ERS 1, at *3. The Defendant used the recovery software from the server company in an attempt to recover her messages. Id. The Plaintiffs sought the email in native format. The Defendant claimed the recovered email was all that was available. This was very problematic, as the parent-child relationship between the email and attachments were broken. Moreover, the Defendant explained that if the Plaintiff looked at the email threads, they could determine who was the sender of the emails and the dates each message was sent. Id. As such, the Court gave the Plaintiff the opportunity to review the email production to determine if the messages could be put in chronological order with senders and recipients. Id.

The Court ordered the Defendant to produce any other unique emails with attachments if they existed on her Defendant’s laptop.ERS 1, at *3-4. The Defendant was also ordered to produce text messages and video files that were responsive to discovery requests. The text messages introduced a common wrinkle with smartphones: what is the phone password?

The context of the case made it appear that a former employee needed to provide his password for his former work phone, which was in the possession of his former employer, in order to recover the text messages on the device. ERS 1, at *4-5. Judge Proctor ordered the former employee to cooperate in providing password to the Defendant. ERS 2, at *2. The Court informed counsel that if the former employee refused to provide his password, to report that to the Court, so the Court could further order the former employee’s cooperation in recovering the text messages. Id.

There are many lessons from this case. The first is the collection of data in a defensible manner. It is wise to avoid having a party turn themselves into a collection expert. While it is entirely possible the Defendant properly used the recovery software, it would likely be less stressful on the party and counsel to have a computer forensic expert attempt to restore the data. It is likely forensic software would have greater options to recover data than server software. This is highly dependent on what caused the crashed, however, if email and attachments could be recovered, that could reduce the need for motion practice.

The other lesson is there are many forms of potentially relevant ESI. Video files can easily be overlooked in a case. Asking a client effective interview questions, and a meaningful meet and confer between attorneys can help identify the possible types of relevant ESI in a case. The final lesson is passwords on work issued phones. A service provider might have software that can crack a password. Alternatively, requiring this information when an employee leaves a company could also reduce this pain point.