In Edwards, et al. v. Junior State of America Foundation, et al., (No. 4:19-CV-140-SDJ) (E.D. Tex. Apr. 23, 2021), Texas District Judge Sean D. Jordan granted in part defendant JSA’s Motion to Dismiss Pursuant to Rule 37 for Failing to Comply with a Court Order to Produce ESI in part over failure to authenticate Facebook messages provided as screenshots, declining to dismiss the case but instead prohibiting plaintiffs from offering any evidence of the alleged messages instead.

Case Background

In this case involving claims of racist and homophobic Facebook messages allegedly sent from one high school student (Cole Harper) to named plaintiff Daniel Edwards, Jr. (who was also a high school student), who were both members of Junior State of America (“JSA”), a youth organization designed to educate high school students in government by, among other things, allowing students to role play as government actors. After questioning Harper and searching his phone, JSA failed to find any evidence that Harper had sent the alleged messages and requested that Edwards, Sr. (the named plaintiff’s father) provide alternative or additional evidence – such as actual screenshots of the messages or the precise date and time of the messages – to supplement the incomplete .jpeg images previously supplied. After Edwards, Sr’s failure to authenticate the messages, JSA reinstated Harper, finding insufficient evidence to conclude that Cole Harper sent the above-described messages. The Edwards proceeded to file suit.

On December 11, 2019, JSA served written discovery requests to the Edwardses, seeking production of ESI from Edwards, Jr.’s Facebook Messenger account that could prove or refute the authenticity of the alleged Messages. One such request, directed to Edwards Jr., sought production of “all Facebook Messages in HTML format between [Edwards, Jr.] and Cole Harper between January 1, 2015, and December 31, 2018,” and explained how to produce messages in HTML format.

Edwards, Jr. never objected or responded to any of those discovery requests – instead, for the next nine months or so, Plaintiffs collectively failed to respond to JSA’s repeated efforts to procure the information sought in JSA’s initial requests for production as to the above-described ESI. Plaintiffs failed to produce a single requested document. Then, on September 3, 2020, JSA filed a motion to compel production of electronic files from Plaintiff Daniel Edwards, Jr., along with a motion for sanctions against Edwards, Jr. for failure to comply with discovery requests and failure to authenticate the messages. Edwards, Jr. failed to respond either to the motion to compel or the motion for sanctions, both of which were granted.

Only then did Edwards Jr. make purportedly responsive productions to JSA, which included two digital forensics expert affidavits: one dated April 20, 2016, and produced on October 15, 2020, signed by Travis Dirr and one executed and produced on October 30, 2020, signed by Graciela Rubio. Both were after the expert-designation deadline of August 12, 2020. Plaintiffs also produced a forensic report which included certain electronic files recovered from Edwards, Jr.’s smartphone, but not the native Facebook-message files, which the plaintiffs confirmed had been deleted.

Judge’s Ruling

Judge Jordan considered JSA’s request for sanctions for the plaintiffs’ failure to authenticate the messages, stating: “Here, the Edwardses arguably violated the Court’s October 13, 2020 order, thus subjecting them to sanctions under 37(b)(2)(A). However, because the Court concludes that the most extreme sanctions—dismissing the case altogether or striking pleadings—are inappropriate here, the Court need not reach the question of whether Plaintiffs violated Rule 37(b). This is because the Edwardses plainly violated Rules 37(c) and 37(e)(1), each of which supports the third requested remedy: the exclusion of certain items of evidence. Thus, the Court will consider the applicability of and potential sanctions under Rules 37(c) and (e) only, as described below.”

As for Rule 37(c) sanctions, Judge Jordan stated that the: “belated disclosures [of expert affidavits] constitute clear violations of: Rule 26(a)(1)(A), which requires that Plaintiffs provide identifying information of ‘each individual likely to have discoverable information’; Rule 26(a)(2)(A), which directs parties to disclose the identities of any individual that the party may call as an expert witness at trial; and Rule 26(a)(2)(D), which mandates that a party make expert disclosures by the court-ordered deadline, in this case August 12, 2020, at the latest. Because Plaintiffs clearly violated Rule 26(a), Rule 37(c) sanctions are available.” Those sanctions were to exclude the Dirr and Rubio affidavits.

Judge Jordan also ruled that sanctions were appropriate under Rule 37(e) for the plaintiffs’ failure to authenticate the messages, stating: “In sum, it is clear that Edwards, Jr. was obligated to preserve the ESI (i.e., the actual files, not a screenshot thereof) reflecting the alleged racist and homophobic Messages, that Edwards, Jr. actually failed to preserve these files and failed to take reasonable steps to do so, and that the ESI in question cannot be restored or replaced. Accordingly, the predicate elements of Rule 37(e)(1) are met… The Court finds that prohibiting Plaintiffs from offering any evidence of the alleged Messages effectively cures the prejudice to JSA that has resulted from Plaintiffs’ failure to preserve evidence that Plaintiffs manifestly knew or should have known was critical to this case.”

So, what do you think? Should the failure to authenticate evidence always result in exclusion of that evidence in trial? Please share any comments you might have or if you’d like to know more about a particular topic.

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