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    When eDiscovery made the case for Taylor Swift

    December 5, 2017

    By Jeff Salling, Esq., Director of Business Development, CDS.

    Thanks to TMZ, we have all seen the photo. Radio DJ David Mueller in a photo with Taylor Swift looking like he had his hand up her dress. He lost his job and then sued Swift. She counterclaimed for assault. His action was dismissed; she won a symbolic $1 award. The part that wasn’t much covered by the entertainment media was that Mueller was sanctioned for spoliation of evidence because of a lost recording that related to his lawsuit. As this case makes clear, not only can’t you escape celebrities, you also can’t escape electronic evidence. It’s everywhere and affecting every case.

    In the lawsuit, Mueller presented portions of an audio recordings of his meeting with his bosses after he was accused of groping Swift, which resulted in him getting fired. However, he claimed he “lost” multiple copies of the full audio recording for various reasons. First, he used his phone to record the meeting, but it consumed so much memory on his phone that the device began to malfunction, so he transferred the files to a MacBook. Next, at some point after contacting an attorney regarding potential legal action, he edited the audio recording and sent only “clips” of the entire audio file to his attorney. Then, he spilled coffee on his keyboard; got a new computer from Apple but did not keep the original hard drive or recover the files from it. Although he had a back-up external hard drive which had the full recording, it also “stopped working” and Mueller didn’t know if he discarded it. He also had an iPad which was “shattered” and replaced. He had a cell phone which may have been the device he used to record the conversation with his bosses, but after his lawsuit was filed and pending, he threw the phone in the trash.

    Swift moved for sanctions, including an adverse inference instruction to the jury. The court declined to make a finding of bad faith and so rejected the adverse inference instruction – an example of how courts are reluctant to impose harsh sanctions in eDiscovery spoliation cases. However, it did sanction Mueller by allowing Swift to cross-examine him about the spoliation and how the recording was lost.

    The case shows just how prevalent electronic evidence is in litigation. It’s not just affecting large scale litigation against big corporations. And it’s not just about the smoking gun email that everyone is trying to find. Electronic devices are an integral part of our lives. We are constantly creating and capturing “evidence” that could become relevant in a dispute, whether it’s an email, text, phone call, picture or video. Attorneys need to know how to handle electronic evidence and how to advise clients about protecting and preserving it.

    Taylor Swift got the benefit of eDiscovery rules today. Tomorrow who knows – check out TMZ.

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