A recent decision in ediscovery case law, Maziar v. City of Atlanta from June 10, 2024, underscores the crucial importance of early preservation, particularly regarding text messages from mobile devices. This case, presided over by United States District Judge Steven Grimberg, offers valuable lessons for litigation professionals. Notably, it represents one of the first instances Case of the Week has covered the denial of a summary judgment motion as a sanction under Federal Rule of Civil Procedure 37(e) for the failure to preserve data.
Case Overview: The plaintiff, a former Director of the Atlanta Mayor’s Office of Immigration Affairs, filed a retaliation complaint against the City of Atlanta. The crux of the dispute centered around text messages on the supervisor’s mobile device, which were not properly preserved despite a litigation hold.
Key Timeline:
- November 2020: Plaintiff’s counsel sends a demand letter requesting a litigation hold.
- April 2021: Incident leading to plaintiff’s termination occurs in which supervisor is key witness.
- May 2021: City issues a litigation hold and terminates the plaintiff.
- December 2022: Supervisor leaves job; City wipes the supervisor’s phone.
- January 2023: Supervisor upgrades personal phone, losing all previous text messages.
The Court’s Analysis: Judge Grimberg’s decision hinged on Federal Rule of Civil Procedure 37(e), which governs sanctions for failure to preserve electronically stored information (ESI). The Court made a crucial distinction between Rule 37(e)(1), which focuses on prejudice, and Rule 37(e)(2), which requires a finding of intent to deprive.
While the Court did not find bad faith on the City’s part, it determined that the plaintiff was indeed prejudiced by the loss of potentially crucial text messages. This prejudice stemmed from the inability to contextualize a cropped text message and access other relevant evidence from the supervisor’s phone.
Sanctions Imposed: In a significant move, the Court denied the City’s motion for summary judgment as a sanction. Additionally, extensive monetary sanctions were awarded to cover the plaintiff’s costs and fees related to both the sanctions and summary judgment motions.
Key Takeaways for Litigation Professionals:
- Timely Preservation is Crucial: Even in seemingly minor employment matters, strict attention to preservation, collection, and production of ESI is essential. Early identification and preservation of data, especially from mobile devices, can prevent costly consequences.
- Implement Robust Preservation Processes: Develop and maintain tools and processes for early identification and preservation of ESI. This proactive approach can significantly mitigate risks and reduce costs in the long run.
- Consider Remote Collection Tools: Utilize targeted remote collection tools for mobile devices. These can be cost-effective solutions to preserve critical data without disrupting business operations.
- Recognize the Broad Impact of Spoliation: The loss of even a few text messages can potentially upend an entire case. Courts are increasingly willing to impose severe sanctions, including the denial of summary judgment motions, for failure to preserve relevant ESI.
- Balance Cost and Risk: While it’s important to consider the cost of preservation against the likelihood of litigation, err on the side of caution. The potential consequences of under-preservation far outweigh the initial costs of proper data management.
Conclusion: The Maziar v. City of Atlanta case serves as a powerful reminder of the importance of proactive ediscovery practices. As litigation professionals, we must constantly balance the risk vs. cost in our approach to data preservation, especially in today’s environment where mobile devices play an increasingly central role in business communications. By implementing robust preservation protocols and leveraging appropriate technologies, we can better serve our clients and avoid costly sanctions that could derail even the strongest cases.
She is a co-author of Electronic Discovery and Records and Information Management, and host of Case of the Week at eDiscovery Assistant. As Principal at ESI Attorneys, Kelly manages the boutique eDiscovery and information law firm that acts as operational business partners with its clients to advise law firms, corporations, and municipalities on all areas of electronic information including eDiscovery, privacy, cybersecurity, and information governance.
Kelly is also the CEO of eDiscovery Assistant — a SaaS-based practical resource for litigators handling eDiscovery — that curates discovery decisions, rules, and additional content. She is developing an online academy to provide on-demand education for lawyers and legal support professionals to stay abreast of changes in the law and technology that affect litigation and clients’ obligations to respond.
You can reach Kelly at [email protected], join her Facebook community group at Let’s Talk eDiscovery, or connect with her on Twitter @kellytwigger.