United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
DOUGLAS E. MILLER, Magistrate Judge.
In these consolidated claims for personal injury and property damage allegedly arising from mold in military housing, contentious discovery disputes have produced 28 contested motions, including several motions for sanctions and reciprocal requests for costs and fees related to the parties' alleged non-compliance. The Court resolved most of the previous disputes from the bench, or in brief written orders entered after oral argument. (ECF Nos. 110, 182, 249, 279, 315, 325, 337, 362, 370, 384, 387, and 391). This Memorandum Order resolves the most contentious and expensive disagreement involving the Defendants' requests for Plaintiffs' electronic media, including text messages, email and social media posts.
In the sixteen consolidated cases, eight military families filed suit with allegations primarily against Defendant Lincoln Military Housing, LLC ("Lincoln"), a contractor engaged by the United States Military to manage government-owned housing used by active duty military. The Plaintiffs allege various illnesses and property damage they experienced were caused by Lincoln's failure to maintain the properties, or properly remediate the properties after mold was discovered. Lincoln, and the other Defendants alleged to be responsible for the deficient response, deny liability.
I. FACTUAL BACKGROUND
Even before suit was filed, Lincoln was aware that some of the Plaintiffs were very active users of email and social media. Lincoln's attorneys had visited Plaintiffs' publically available Facebook pages, as well as Facebook groups and other pages set up specifically to deal with the issue of mold and mold-related injuries. As a result, in January 2012 defense counsel sent a preservation letter to the first identified Plaintiff, Shelley Federico, roughly three months after she moved out of the subject housing, see Compl. ¶ 56 (ECF No. 1-1, at 16-17). The letter, directed to her counsel, outlined Defendants' requests that she preserve and eventually produce electronic media. Among other things, the letter purported to require Ms. Federico to preserve:
1. Internet and web browser history files.
2. Potentially relevant texts and email messages.
3. Social media postings concerning their claims in the lawsuit and claimed damages.
4. Any photo or video images of the subject properties.
The four-page letter also demanded that Ms. Federico and her counsel make a written response confirming their receipt of the letters, their understanding of the obligations they impose, and that they "have imaged their computers and related devices." (ECF No. 285-2, at 22). Thereafter, as suits commenced discovery was permitted but the District Court limited discovery to issues involving liability which were then set for a consolidated trial in October, 2014. Defendants served interrogatories and requests for production seeking all of this material from each Plaintiff.
Although the detailed preservation letter should have signaled to Plaintiffs' counsel the seriousness with which Defendants would pursue electronic discovery, their initial response included almost no production of electronic records. In fact, most of the Plaintiffs produced no electronic media of any kind. Those that did, produced only a few printed copies of emails, but no original emails, no social media posts and no text messages.
On June 4, 2014, the Court held the first hearing on discovery disputes, which came on Plaintiffs' motions for Protective Orders seeking relief from Defendants' requests for production, and certain subpoenas. E.g., (ECF Nos. 211, 228). For unrelated scheduling purposes, many of the Plaintiffs were present in court at the hearing. In response to Defense counsel's description of the meager production, Plaintiffs' counsel made a familiar assertion, advising the Court that he had not withheld anything, but had produced all electronic media which had been provided to him by his clients. He then noted that his clients were "heavy users of email" and that he perceived they did "not quite understand how comprehensive [their production] had to be." (ECF No. 259, at 22). The Court admonished the assembled Plaintiffs to turn over related material to their attorney and permit counsel to determine whether it was relevant. The Court also advised the Plaintiffs that there could be consequences if materials were not provided as required by the Rules. Id . at 29-30. The Court also retained under advisement Lincoln's request for costs and fees associated with the lack of production.
Despite the Court's guidance, the Plaintiffs produced few additional emails, but continued to communicate with counsel concerning their ongoing efforts to search for electronic media and produce additional responsive material. On June 23, 2014, Defendants filed a motion to compel various forms of discovery. (ECF No. 263). On June 24, Plaintiffs produced a supplemental production of the then-seven families involved in the consolidated cases. The supplemental production did include additional email and social media posts, but five families produced no social media and of the two that did, only a handful of posts were provided in hard copy. On June 25, 2014, the Court held a second previously scheduled hearing and reviewed additional arguments on compliance. Defendants again expressed their disbelief that Plaintiffs' production was complete, particularly with regard to their extensive use of social media. Plaintiffs seemed to concede the point, with their counsel stating they had engaged an outside vendor, Sensei Enterprises, to provide estimates and design a search protocol for electronic media. Later the Plaintiffs received a cost estimate for Sensei's work to perform "email and social media recovery" from Plaintiffs' accounts. (ECF No. 284, at 9). The proposal described costs which were then estimated to be $22, 450.00, and Plaintiffs requested that the Defendants agree to bear this cost of electronic production. The Court did not order a forensic exam nor allocate the expected cost to the Defendants, as it perceived that additional production by a thorough self-directed search would yield sufficient results.
On July 10, 2014, Plaintiffs requested an emergency hearing in an effort to extend the Court's previously imposed deadline for production of electronic records. The hearing convened by phone and Plaintiffs' counsel again explained that the volume of material to be searched could not be completed prior to the extended deadline which was then set at July 17, 2014. (Tr., ECF No. 286). After hearing Plaintiffs' arguments and Defendants' response, the Court declined to extend the deadline and advised Plaintiffs' counsel that if Plaintiffs were unable to produce any more responsive documents, they were required to advise the Court and Defendants of the nature of any search they had performed. Specifically, the Court required that they advise in writing the nature of the accounts they had examined, what folders and materials were present in the accounts, including the last available dates of materials presently saved and accessible to them, in order to establish whether their failure to produce materials resulted from routine deletion or from some other obstacle. (ECF No. 286, at 15).
The Court was reluctant to allocate responsibility for the contractor's estimated cost of reviewing the Plaintiffs' various email accounts and social media noting that the electronic data should be available to the individual Plaintiffs. The Court provided the following direction to the parties:
This data is available to them and they should be able to get it, and it's crazy to have to pay somebody $22, 000.00 to do what they should be able to do within a matter of an hour or an hour and a half of looking through their own files. And if they are unwilling to do that, then I will entertain a request for sanctions. And those sanctions may include the cost of having a professional engaged to produce them. So you should share your cost estimate with your clients, because it is within the Court's power, if there has been noncompliance, to order them to pay those costs.... I'm going to require that they produce those materials and an explanation of how they examined their own social media and email accounts to generate the responsive materials. So if they're producing zero, there had better be a very detailed explanation of where they looked.
Id. (emphasis added).
The Plaintiffs failed to meet the July 17 production deadline, but they did produce letters describing their search criteria. The letters varied widely in the diligence reported. Some Plaintiffs produced detailed descriptions of their extensive efforts to identify responsive email and social media. Others indicated they had turned over account names and passwords and left the matter entirely in the hands of their attorneys. The lead Plaintiff, Ms. Federico, described in precise detail the correct method for downloading Facebook's activity log, but it appears no other Plaintiff was instructed on how to accomplish this relatively straightforward task. A few specifically referenced their decision to pay a portion of the cost to retain an expert to search and produce their electronic data, although the Court had not imposed the use of a forensic expert or allocated the cost.
On July 31, 2014, Defendants filed their Motion for Sanctions. (ECF No. 309). The supporting brief argued that Plaintiffs' failure to produce texts, email, and other electronic media had severely compromised Defendants' ability to proceed with depositions and prepare for trial. The motion sought only one sanction, dismissal of Plaintiffs' claims for failure to comply. Plaintiffs opposed the sanctions motion (and several others), and on August 20, 2014, the Court heard oral argument on the outstanding discovery matters. Relevant to this dispute, Plaintiffs proffered at that hearing that they had engaged their IT consultant, who was working to search and produce relevant records, primarily from social media. The consultant was present and described the ongoing process for searching and processing the Facebook records using previously agreed upon search terms. He stated that the process of analyzing the records had produced 4.2 million "artifacts" from the parties' various Facebook accounts, a number which eventually rose to 4.5 million artifacts from fifteen different accounts. (Decl. of John McCabe, ECF No. 389-1, at 93). He stated that he expected the eventual production after applying the search terms and eliminating duplicates to include thousands, or perhaps tens of thousands of records.
At the hearing, the Court noted that the information sought was discoverable and had not been timely produced despite the Court's order. Nevertheless, the undersigned expressed skepticism that the material eventually produced would yield much that was relevant to the liability phase of the trial.As a result, the Court deferred any ruling until after the consultant's production, but observed at the hearing:
I'm not going to make any final decision [on a sanction] until I know what is disclosed in the Facebook materials because I have the same concern that you just articulated, and that is that if Sensei produces 30 pages of material and there's three relevant posts, then I'm not going to be inclined to fashion much of a sanction for not producing more email. But on the other hand, if that Facebook material produces 50 or 60 highly relevant instances of inconsistent statements, then I might well have to fashion a more severe sanction for them not having access to the other electronic records.
(ECF No. 338, at 170).
In September, Plaintiffs produced the results of their consultant's search, including over 5, 000 records from social media. Almost immediately thereafter, Defendants began deposing Plaintiffs and other witnesses. In November, the parties filed supplemental briefing on the outstanding issue of sanctions relating to production of electronic media. Defendants' briefing argues that the September production, combined with other records already produced, is still inadequate and that the relevance of the material which was produced demonstrates the severe consequences flowing from data which Defendants contend is missing, lost or destroyed. Plaintiffs responded and argued the exact opposite. They claim that the material already produced - over 5, 500 Facebook posts and over 1, 300 emails - includes almost all of the discoverable electronic evidence, and demonstrates the minimal relevance of the electronic media to the liability issues which will be contested in the April trial. In addition, Plaintiffs contend that any material omitted resulted from their clients' inexperience in managing electronic production and not from bad faith or intentional destruction of evidence. Combined, the parties' briefing and exhibits on this motion alone totals 2, 233 pages. See (ECF Nos. 310, 330, 332, 373, 389, 392). Again, the only sanction Defendants specifically request is dismissal, but their brief also refers more generally to "those sanctions [the Court] deems appropriate against Plaintiffs and their counsel." (ECF No. 373, at 30).
After reviewing the parties' briefing, exhibits, and the five-month history of the discovery disputes over this and other evidence, the Court, for the reasons that follow, declines to impose any further sanction against Plaintiffs beyond the $29, 000 expense associated with their expert's production of the Facebook records, but will award a portion of the reasonable attorney's fees associated with the original motion to compel. (ECF No. 263).
II. STANDARD OF REVIEW
Defendants' request for sanctions implicates the Court's authority to police discovery noncompliance under three separate, but overlapping standards. First, as nearly all of the electronic production occurred after Defendants' first Motion to Compel, Rule 37(a) provides a means to reallocate the costs of that compelled production. With regard to a motion to compel discovery specifically, Rule 37(a)(5)(A)of the Federal Rules of Civil Procedure provides:
If the [discovery] motion is granted-or if the disclosure or requested discovery is provided after the motion was filed-the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the disclosure or ...