E-Discovery & Digital Evidence Case Law Update
A SURVEY ON SOME RECENT IMPORTANT E-DISCOVERY AND DIGITAL EVIDENCE CASES
June 11, 2018
At the end of 2017 and continuing into 2018 there are some very interesting cases coming out relating to the admissibility of social media, e-mail discovery and discovery relating to digital evidence. The courts are trying to balance privacy considerations and the need for discovery into what may exist. The overall lesson is that the legal landscape continues to evolve.
Bingham v. Baycare Health System, 2016 WL 3917513 (M.D. Fla. July 20, 2016)- Email communications between plaintiff and his attorneys regarding the pending litigation were not protected by attorney-client privilege to the extent that the emails were forwarded by the plaintiff to his work email account and then accessed by the plaintiff on his employer’s communication system.
Florida Dep't of Transp. v. Tropical Trailer Leasing, L.L.C., 227 So. 3d 715, 717 (Fla. 3d DCA 2017)- FDOT had to produce data relating to toll records that were confidential, but not privileged.
Miller v. Bank of America, 201 So.3d 1286 (Fla. 5th DCA 2016) -Trial court erred by allowing a screenshot of a purported business record because the foundation for the business records exception was not established.
State v. Stahl, No. 206 So.3d 124 (Fla. 2d DCA 2016)- Court determined that turnover of the passcode on a cell phone did not violate the Fifth Amendment rights of a defendant accused of a video voyeurism crime.
State v. Worsham, 227 So. 3d 602 (Fla. 4th DCA 2017)- Warrantless search of “black box” in defendant's impounded vehicle violated the Fourth Amendment.
Antico v. Sendt Trucking, 148 So. 3d 163 (Fla. 1st DCA 2014)- Court ordered turnover of cellular telephone for limited and strictly controlled inspection in civil case. BUT SEE- Ramos v. Hopele, Case No. 17-62100-Civ (S.D. Fla. March 19, 2018- District Court denied request for forensic examination of cell phone because it was not tailored to obtain information relevant to any claim and not proportional to needs of case.
Ethics Opinion 14-1- A lawyer may advise a client, pre-litigation, to change privacy settings on the client’s social media pages so that they are not publicly accessible. The lawyer also may advise that a client to remove information as long as the social media information or data is preserved. (Note: This opinion was approved by The Florida Bar Board of Governors on October 16, 2015.)
Nucci v Target, 162 So. 3d 146 (Fla 4th DCA 2015) holding that the privacy interest in pictures posted to social media is “very limited” and allowed discovery of social media. ALSO SEE Bates v. City of Tampa, 15 CA-006097 (Hillsborough Circ. Court, May 10, 2017.
Lamb v. State, 43 Fla. L. Weekly D973 (Fla. 4th DCA May 2, 2018)- Facebook video admitted in evidence where digital forensic examiner testified how the Facebook video was obtained and its distinctive characteristics.
Sheffield v. Greene, 6:17-cv-273-orl-37 (M.D. Fla. May 17, 2018)- District Court entered sanctions where defendant “ignored” their professional responsibility under Rule 4-.1.1 in their failure to either to have appropriate technology competence, or to retain a non-lawyer with such competence to respond to the plaintiff’s discovery requests.
In re State Farm Lloyds, 520 S.W.3d 595 (Tex. 2017)- When electronic data in a reasonably usable form is readily available, a trial court must balance the burdens with the benefits in ordering production in a different form.