Court Denies Motion to Exclude WhatsApp Message Not Produced in Original Form: eDiscovery Case Law

In U.S. v. Avenatti, No. 19-CR-374-1 (JMF) (S.D.N.Y. Sept. 9, 2021), New York District Judge Jesse M. Furman, among other rulings, denied without prejudice the defendant’s motion that his WhatsApp communications (with a client he was indicted for a scheme to defraud) should be excluded unless the Government obtains and produces “the original, electronically stored version” of the relevant communications, finding that his arguments about authentication and completeness were “premature”.

Case Background

This criminal case involving Michael Avenatti, a formerly high-profile lawyer, who was charged with an alleged scheme to defraud former clients.  One of those clients he was accused of defrauding was Stephanie Clifford, an adult entertainer more commonly known by her stage name, Stormy Daniels.

On March 11, 2019, the Government interviewed Ms. Clifford as part of its investigation. According to the Government, during the interview, Ms. Clifford provided “limited consent for the Government to screenshot in her presence certain portions of [her] WhatsApp text messages with the defendant, and an Investigative Analyst with the United States Attorney’s Office did so.”  Two weeks later, Ms. Clifford, through counsel, “voluntarily provided to the Government an export of all of the WhatsApp text messages with the defendant that were stored on [her] cellphone, which covered the time period of February 28, 2018 through February 15, 2019.”  The Government’s understanding was that the “export” was “generated automatically using an electronic feature that compiles the entirety of a WhatsApp conversation into a printable and shareable electronic file.”

The defendant argued that the Government’s “failure to produce the original, electronically stored version of the chats” calls for exclusion of the evidence from trial or, “at a minimum, … an evidentiary hearing.”  He also contended that, under Brady v. Maryland and Rule 16 of the Federal Rules of Criminal Procedure, the Government “has a duty to produce all of [his] communications with Ms. Clifford … in their entirety and forensically-collected format” and that “[i]ts failure to do so violates due process and deprives [him] of a meaningful opportunity to defend against the government’s evidence and theory of the case.” Separately, he contended, in substance, that the screenshots and “export” document cannot be properly authenticated or should be excluded pursuant to the “rule of completeness.”

Judge’s Ruling

Judge Furman began his ruling on this issue by stating: “Avenatti is wrong. Avenatti provides no basis to believe that there is material, let alone exculpatory, evidence on Ms. Clifford’s cellphone or to be found in a ‘forensic’ version of the WhatsApp messages. (That failure is especially noteworthy because, as the Government notes, Avenatti has access to the contents of his iCloud account, ‘which includes thousands of records of WhatsApp calls and messages’ between him and Ms. Clifford, including, presumably, most, if not all, of the messages at issue here…) But more fundamentally, it is well established that the Government’s ‘discovery and disclosure obligations extend only to information and documents in the government’s possession.’  Relatedly, the Government has no obligation, under Brady or otherwise, ‘to seek out … information like a ‘private investigator and valet … gathering evidence and delivering it to opposing counsel.’ ‘”

Judge Furman also stated: “Avenatti does not dispute that Ms. Clifford provided only limited consent to take screenshots of certain communications and did not consent to a search of her cellphone or to the creation of a ‘forensic’ copy of its entire contents. Avenatti cites, and the Court has found, no authority for the proposition that where, as here, a government official is in possession of a person’s cellphone, that official even has authority to access or copy the contents of the cellphone without a warrant or the person’s consent.”

Judge Furman added: “Avenatti’s arguments about authentication and completeness fall short as well. For starters, they are premature. The admissibility of any particular exhibit under the Federal Rules of Evidence is more appropriately addressed at, or (through a motion in limine) shortly before, trial…In any event, Avenatti’s arguments fail on the merits. First, by its terms, Rule 106 of the Federal Rules of Evidence, which codifies the “rule of completeness,” is a rule of admissibility. It provides that a court should permit the introduction of certain writings or statements “that in fairness ought to be considered” when other writings or statements are offered; it does not call for exclusion of the writings or statements that are offered in the first instance. Second, it is well established that, if properly authenticated (for example, by a witness with knowledge, such as a participant), screenshots of text messages and copies of electronic communications are admissible…”

As a result, Judge Furman denied the defendant’s motion with regard to the WhatsApp messages, but stated: “That denial, however, is without prejudice to particularized objections to specific exhibits that the Government seeks to introduce at trial.”

So, what do you think?  Do you think the defendant had a point or was the denial (without prejudice) correct?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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